ISLAMABAD: The trial of any civilian has not yet started in military courts, Attorney General for Pakistan (AGP) Mansoor Usman Awan told the Supreme Court on Tuesday that the fourth hearing of the petitions filed against the trial of civilians in military courts will not begin.
In yesterday’s hearing, Chief Justice of Pakistan (CJP) Umar Atta Bandial had asked the AGP to “assure” him that no such case will take place while the case is pending in court.
The AGP had confirmed that no case was pending against civilians.
However, later in the evening, Inter-Services Public Relations (ISPR) Director General (DG) Major General Ahmed Sharif Chaudhry said that action was already underway against the 102 people handed over for trial.
A six-member larger bench headed by Chief Justice Umar Atta Bandial comprising Justice Ijaz-ul-Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik and Justice Mazahar Ali Naqvi is hearing petitions against the government’s decision to try citizens in the country. Is. Military courts
The government announced that those involved in the violence that erupted on May 9 – in which several government buildings and military installations were vandalized – would be prosecuted under army law.
PTI Chairman Imran Khan, former Chief Justice Jawad S Khawaja, legal expert Aitzaz Ahsan and PILAR Executive Director Karamat Ali filed separate petitions filed by the Supreme Court to declare the military trial unconstitutional. has been requested.
During the previous hearings, former chief justice’s lawyer Khawaja Ahmed Hussain, petitioner Aitzaz Ahsan’s lawyer Latif Khosa and civil society lawyers Faisal Siddiqui and Salman Akram Raja completed their arguments.
‘Conflicting statement’
After the AGP’s explanation, the PTI chief’s counsel came to the rostrum at the start of the hearing and said that there were conflicting statements by the AGP and DG ISPR.
He said, “Yesterday, a press conference was held by DG ISPR in which he spoke about the trial of 102 persons. There are conflicting statements by the Attorney General and DG ISPR. “
To this the AGP replied: “I stand by my statement even today.”
He added that representatives of the Ministry of Defense are present in the court and can explain the situation better.
To this, Justice Ayesha said: “We are currently reviewing the existing judicial precedents.”
Moreover, the Chief Justice expressed confidence in the AGP’s statement and directed to bring the matter to the court’s attention.
‘Can civilians be tried under Army Act?’
Lawyer Bhandri then resumed his arguments on the case saying that civilians cannot be tried in military courts.
He said that I will not talk about the trial of soldiers and the powers of the court.
“However, whether an offense can come under the Army Act or not is a separate question,” he said, adding that it should be determined whether military courts [any Citizen’s] can be sued.
Justice Ahsan remarked that Article 175 (3) of appointment of judges came in 1986.
“Compared to the judicial precedents you are talking about, the circumstances and events are completely different now,” he observed.
Justice Muneeb then asked Bhandari what protection the Constitution has given to civilians that military officers do not enjoy.
Bhandari replied that the fundamental rights enshrined in the Constitution did not apply to military personnel and officers.
“My arguments will only be against military trials of civilians. I have nothing to do with the issue of trials against soldiers,” he added.
Bhandari also submitted that Parliament could not allow civilian trials in military courts without a constitutional amendment, adding that the 21st Amendment established the principle that civilians should be tried [under the Army Act]. A constitutional amendment is needed.
Justice Ayesha asked: “[But] if there is an aspect of internal connection, cannot civilians be tried in military courts?”
Justice Ahsan added: “Principles such as threats of war and defense of domestic relations are enshrined in the 21st Amendment case law.”
Internal facilitation
Referring to the AGP, Justice Afridi asked whether the citizens are being internally linked to the forces.
The AGP replied that the inquiry looked into allegations of facilitation from within the army.
Justice Ayesha said that according to the FB Ali case, civilians can be tried in a military court.
“According to judicial precedents, if civilians have internal relations in the forces, they can be tried in military courts,” he added.
However, he asked who was responsible for determining whether a civilian was internally connected and would therefore be tried in a military court.
‘Nothing in writing’
Justice Afridi asked the AGP under which law the cases of the accused are being transferred to the army courts.
AGP Mansoor replied that it was done under 2D (1).
On this occasion, the Chief Justice remarked: “Interestingly, we do not have the Official Secrets Act available.”
Adding that nothing was available in writing on the matter, it asked the AGP to “assist the court” as to which offenses fall under 2D(1).
Justice Ahsan further said that the discretionary power to allow trials of civilians in military courts should be exercised in a transparent manner while Justice Akhtar remarked that according to the FB Ali case, military courts under the Army Act can only be tried in war situations. Ordinary citizens can be tried.
“There is a need for a constitutional amendment to allow the trial of civilians in military courts unless there is a war situation.”
‘Judge appointed under Article 175 (3) should conduct trial’
The PTI lawyer continued his arguments and said that the citizens cannot be deprived of their fundamental rights.
Justice Ayesha said that Section 2D of the Army Act states that it will apply to those who are not members of the armed forces.
Bhandari replied that it only applies to civilians who “influence” the operations of the forces.
Justice Naqvi questioned that how ATC allowed the transfer when the crime under the Army Act was not on record?
The PTI counsel said: “Article 175 (3) of the Constitution deals with judicial procedure.”
“Articles 9 and 10 of the Constitution talk about fundamental rights,” he said, adding that though these articles are separate, they are interrelated.
“Fundamental rights require that a judge appointed under Article 175 (3) should try the case,” argued Bhandari, adding that a civilian court-martial reflects well on the judicial system.
“No one has voluntarily allowed civilians to be tried in military courts,” he said.
Justice Ayesha noted, “For a trial under the Army Act, the offense must be under the Official Secrets Act, requesting that the Official Secrets Act be produced.
Bhandari said that according to the official Army Act, it is an offense to invade or use any restricted area for the benefit of the enemy.
The Chief Justice then remarked on the importance of the morale of army officers.
After which the hearing was adjourned for half an hour.
