SC resumes hearing of petitions against civilians’ trials in military courts

Islamabad: The seven-member larger bench of Supreme Court Friday resumed the hearing of petitions filed against trials of civilians in military courts.

According to details, the seven-member bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial comprising Justice Ijazul Hassan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazhar Naqvi and Justice Ayesha are hearing the case, where civil society lawyer Faisal Siddiqui is giving arguments.

Faisal Siddiqui during the hearing said: “My petition is different from other petitions, I did not challenge the Army Act in the petition, I am not of the opinion that civilians cannot have an army trial,” adding that civilians have been tried in the military court earlier too, I have also submitted written statments.

On this, Justice Mansoor Ali Shah asked lawyer Faisal why he did not challenge the Army Act.

Faisal told the court: “I am not of the opinion that any provision of the Army Act is illegal, rather my point is it is wrong to conduct an army trial of arbitrary people, there is a constitution against the trial of certain civilians under the Army Act”.

Responding to the argument of lawyer, Justice Ayesha Malik inquired about the principal that has been set in relation to the Army Act in other cases, adding that for what reasons are the trials of civilians being conducted under the Army Act.

Justice Mansoor said: “A trial under the Army Act or the Official Secrets Act takes place when it comes to national security. When did the civilians violate the Army Act or the Official Secrets Act? When you are not challenging the Army Act, talk about the law.

Due to the hearing of the larger bench in the Supreme Court, the cause list of the other benches has been cancelled. The cases were to be heard by three regular benches in the Supreme Court.

Yesterday (Thursday night), Supreme Court had issued written notices to Prime Minister Shehbaz Sharif and other parties while rejecting the urgent injunction appeal of Latif Khosa. It also said that first it will hear the position of Attorney General of Pakistan (AGP) Mansoor Usman Awan on the stay order.

A nine-member bench was formed to hear petitions in the Supreme Court against trials in civilian military courts, which was dissolved over separation of Justice Qazi Faez Isa and Justice Sardar Tariq from the bench.

During the hearing, Justice ijaz-ul-Ahsan asked lawyer Faisal Siddiqui that which crimes are covered by the Official Secrets Act? Upon which Faisal Siddiqui told the court that the plea for transfer of the accused to the military courts cannot be given in the Anti-Terrorism Court (ATC).

On the argument of the lawyer, Justice Ijaz said that legally, if the army asks for the extradition of a civilian, then the reference is sent to the federal government. The army can charge, but the trial will continue in the civil court.

He also inquired that on what basis will the commanding officer demand the extradition of civilian from the administrative judge? Any documentary evidence on which extradition is sought is based on the approval of the federal government.

To which Justice Mazahir said: “You could not tell in which listed cases the provisions of the Official Secrets Act were included. He also inquired about whom the commanding officer can demand the extradition of civilians”.

Justice Mansoor and Justice Muneeb inquired that how did the army allege that certain people had committed a crime? They are repeatedly asking you questions and you are not answering. The civil trial is underway, how does the army decide the control of a person. What is the internal procedure of the army in which it decides to get the civilians? It was also asked whether the military authorities can decide to hand over the civilian.

Justice Muneeb said in a dialogue that according to you, the offense under the Official Secrets Act is necessary. Not that it happened under the Army Act, Justice Mansoor should tell what the army prepares before coming to arrest someone.

On the inquiry of the court, lawyer Faisal Siddiqui said that this is my argument that the army cannot demand the extradition of civilians.

Justice Yahya Afridi's questioned the lawyer that where are the provisions in the Criminal Code in the Army Act? To which lawyer Faisal said that the problem is to decide the forum where the trial will take place.

Justice Afridi expressed indignation at lawyer's argument and said, "Don't teach us Section 13 of the Official Secrets Act." Justice Mazhar Naqvi inquired about approval of federal government approved the trial of civilians in military courts.

Chief Justice Umar Atta said: “It is common sense that crimes under the Official Secrets Act are to be determined by the army. We will ask the Attorney General why he did not request the extradition of the civilians on a solid basis”.

On the silence of lawyer Faisal Siddiqui, Chief Justice Atta Bandial added that you should take a break, Justice Mansoor said that you should drink coffee etc. You will have to pay a fine for not answering the questions.

Later, a 15-minute break was taken in the hearing in the Supreme Court.

On the resumption of the hearing, the Chief Justice of Pakistan remarked that if a civilian incites an army official to rebel, he can be tried in a military court.

“It is not correct to say that a civilian can never be tried in a military court, said CJP Bandial adding that as to what procedure was adopted to bring civilians under the jurisdiction of military courts. It must also be seen on what basis the judge of the Anti-Terrorism Court (ATC) transferred the cases to the military court.

Chief Justice Umar remarked that crimes under the Official Secrets Act have to be determined by the army who can apply for the extradition of civilians in the anti-terrorism court, but the army has not been given a solid basis for extradition of civilians.

Meanwhile, civil society lawyer Faisal Siddiqui said: “The military court for the trial of civilians can be activated only in exceptional circumstances”.

On this, Justice Ijaz-ul-Ahsan said that in the case of 21st constitutional amendment, the court declared that military courts are for specific situations, in this decision, words like war situations were used”.

He continued to say that he was not aware that the position of the government is that today there is a war situation, if the court thinks that its hands are tied because of the decision of the 21st amendment, then it should form a larger bench. To which Justice Mansoor Ali Shah said that it is a larger bench.

The court adjourned the hearing on the petitions till 9:30 am on Monday, (June 26) and the Chief Justice said that the hearing will start on Monday with the arguments of Salman Akram Raja, will take notice automatically and will not make a judicial order but will note everything.