Military trial of civilians hasn’t started yet, AG tells SC

ISLAMABAD: The Chief Justice of Pakistan, Umar Ata Bandial, rejected the request for issuing a stay order on military trials of civilians after the federal government on Tuesday informed the Supreme Court that trials had not commenced in military courts as investigation in cases was still underway.

At the same time, Justice Yahya Afridi asked the CJP to form a full court over the military trial of civilians as without one, any judgment by the present bench may lead to diminishing deference the decision deserves.

A six-member larger bench headed by Chief Justice Umer Ata Bandial, Justice Ijazul Ahsen, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik heard the petitions, challenging the trial of civilians in military courts.

In pursuance of the court’s order, Attorney General Mansoor Usman Awan told the court that the trial of civilians in military courts had not yet started as, he said, investigation in cases was still in progress. The AGP told the court that he will file the relevant documents and his written synopsis before the next date of the hearing. The AG also provided the court with the list of 102 civilians who are currently in military custody along with the details of the stations where they are being kept.

On the court’s query, the AG stated that the cases of detained civilians are at the investigation stage and no detained civilian is to be charged with the commission of any offence that attracts either capital punishment or a lengthy sentence, the court order issued on Tuesday’s hearing said.

The AG told the court that under the Pakistan Army Act Rules, 1954, after the completion of the investigation, accused persons are provided copies of the prosecution evidence and granted time to examine the same and to engage counsel. That stage has not arrived yet, therefore, no military trial of any of the detained civilians has so far commenced. However, if any development in this regard takes place, he will immediately inform the Chief Justice of the same in Chambers, the court noted down in its order.

Similarly, the AG submitted that the telephonic conversation of the detained civilians with nominated members of their families shall be established today and a weekly visitation schedule for them shall be chalked out expeditiously.

The AG informed the court that no advocates and journalists are in military custody, says the order adding that additionally, the federal government shall render its assistance to trace and recover the missing journalist Imran Riaz Khan. He also submitted that he will seek the instructions of the federal government on whether the list of 102 detained persons can be made public and shall apprise the bench of the response in chambers today, says the order. The court then adjourned the hearing after Eid holidays,

It is pertinent to mention here that Chief Justice Umer Ata Bandial the other day had expected that no civilian will be tried in the military courts till the final conclusion of the pending proceeding with it. While hearing pleas seeking the protection of fundamental rights of citizens, the apex court had directed the federal government to provide complete details regarding persons arrested so far in connection with the May 9 riots across the country.

Earlier, during the course of hearing on Tuesday, Supreme Court Bar Association (SCBA) President Abid S Zubairi came to rostrum and submitted that they had also filed a petition in the matter in hand. The Chief Justice replied that they were happy that the SCBA also filed a petition in this matter adding that they would welcome good arguments from his side as well.

Uzair Bhandari, counsel for PTI, while continuing his arguments clarified that his arguments before the court will be confined only to the trial of civilians by the military courts adding that he had nothing to do with the trial of personnel of armed forces.

Referring to the press conference held by the military the other day, he said that ISPR Director General Maj Gen Ahmed Sharif Chaudhry stated that 102 people would be tried in military courts. He said that there was a contradiction between the Attorney General’s statement and that of ISPR. Attorney General Mansoor Usman, however, rose and said that he stands by what he said the other day, that 102 people are not being tried. The Chief Justice observed that the court believes in what the learned AG said and rejected the request for issuing a stay order.

During the course of the hearing, Justice Yahya Afridi asked the AG to ensure that the suspects would be allowed to talk to their families. Similarly, Chief Justice Umer Ata Bandial observed that all the suspects should be able to talk to their family members on Eidul Azha. The Attorney General gave an assurance to the court in this regard. The PTI counsel contended that even parliament cannot allow the trial of civilians in military courts without a constitutional amendment adding that the 21st Constitutional Amendment has already set this principle as well. Justice Ijazul Ahsen observed that the principles of internal relations, threats of war and threats to Pakistan’s defence have been set in the verdict given by the apex court in the 21st Amendment case.

Justice Yahya Afridi observed that the situation was very much clear after the DG ISPR’s press conference the other day. The judge asked the learned Attorney General to clarify whether the accused were taken into custody under Section 2(d) (i) of the Official Secrets Act or Section 2(d)(ii). The AG replied that initially, they were detained under Section 2(d)(ii) adding that Section 2(d)(i) may also be applied later on. Chief Justice Umer Ata Bandial, however, observed that the interesting thing is that the Official Secrets Act is not available to us and due to its non-availability, arrows are being shot in the dark.

Justice Ijazul Ahsen observed that we cannot ignore the precedents of previous trials against civilians in military courts. The judge, however, said that such instances in the past had different facts and different reasons as well.

Justice Munib Akhtar observed that in times of emergency and war-like situations, the trial can be held in military courts.

At this, the PTI counsel submitted that the apex court majority verdict in the 21st Constitutional Amendment’s case had also imposed the same condition that such trials can only be held if there is a war.

The counsel further submitted that Article 175(3) of the Constitution talks about the judicial structures while articles 9 and 10 of the Constitution deal with fundamental rights as well.

Although, all these articles of the Constitution are separate, they are also interrelated, the PTI counsel contended. Similarly, the counsel submitted that a court-martial trial of a civilian does not leave a good impression on the judicial system and no one has favoured it so far. He further submitted that conducting a trial through the military will spark an environment of uncertainty in the country adding that provisions of the Official Secrets Act were not mentioned anywhere in the FIRs.

Chief Justice Umer Ata Bandial observed that the most important thing among officers was morale. Any action which lowers the morale of an army officer would benefit the enemy. Justice Mazahir Ali Akbar Naqvi asked the PTI counsel as to whether an accused could get bail if convicted under the Official Secrets Act. Uzair Bhandari replied that this was possible as the act was amended and anti-terrorism provisions were merged into the Protection of Pakistan Act 2017.

At one point, Chief Justice questioned how the accusations were made without evidence against the 102 civilians adding that this matter is beyond of understanding. Justice Ihazul Ahsen observed that as per records, the details of the accusations are not even available.

Meanwhile, Attorney General Mansoor Usman Awan submitted before the court that he has provided the court, complete formulations of his arguments. The Chief Justice asked the AG whether all legal modalities have been ensured in the process of taking the persons in custody to which the AG replied that tell the court procedure of the trial and protection of fundamental rights as well.

The AG while handing over a file to the court submitted that details pertaining to 102 people taken into custody are available in detail

The AG submitted that 102 persons were in the army’s custody. He assured the court that the detained persons would be allowed to speak to their family members on the phone. He also said that the suspects would be granted permission to meet their parents, spouses, children and siblings once a week. The family members can file an application with the concerned official for meeting the arrested persons”, the AG added.

The Chief Justice told the AG to make sure that family members should know who was arrested so that they could meet them on the occasion of Eid-ul-Fitr. The AG however, told the court that he will inform in Chamber regarding making the public, list of the detenues adding that basic health facilities are being ensured to them. The Chief Justice directed the AG to ensure meeting of the arrested persons with their family members today. The AG told the court he know about the missing journalist. The CJP asked whether he was talking about journalist Imran Riaz. Attorney General submitted that he was not in the government’s custody however, he said that efforts are being made to recover him. Chief Justice, however, asked the AG to make efforts for his recovery so that he could spend Eid-ul-Fitr with his family. Later the court adjourned the matter for date in office (Indefinite period.)

In a related development, Justice Yahya Afridi, Judge of the of Supreme Court, has asked Chief Justice of Pakistan Umer Ata Bandial to reconstitute the bench and refer to a Full Court the petitions challenging the trial of civilians in military courts. He said it was critical that without full bench any judgment by the present bench may lead to diminishing deference the decision deserves.

In his separate note issued in the court’s order of June 23 in the instant petitions, Justice Yahya Afridi, a member of the present six-member larger bench hearing the petitions, urged that the Chief Justice of Pakistan may consider the reconstitution of the present Bench, and refer the present petitions to a Full Court Bench. Former prime minister Imran Khan, former CJP Jawwad S Khwaja, Barrister Aitazaz Ahsen and others have challenged the apex court trial of civilians in military courts, praying for declaring it unconstitutional.

Justice Yahya Afridi said that the entire edifice of a credible justice system is based on public trust adding that in the current politically charged scenario, where the term of the present government is drawing close to its end and the nation is gearing up for fresh elections, the political murmurings against the composition of the present bench could be palatable. “But what is most serious and cannot be disregarded is that there are objections in writing from within the members of the bench, to the very constitution of the bench hearing the present petitions,” Justice Afridi said.

In this regard, the judge maintained that Senior Puisne Judge has recorded in writing his said objections, and the same are by now in the public domain. “Thus, the matter of the present composition of the bench warrants urgent attention and reconsideration by the Hon’ble Chief Justice of Pakistan, lest it may dampen public trust in the justice system”, Justice Yahya Afridi said.

“In no way am I endorsing or agreeing with the reasons recorded by the Hon’ble Senior Puisne Judge in his written note”, the judge said adding that at this stage of the present proceedings, he does not find it appropriate to comment on the legality thereof.

“Yet, even if one may not agree with the law points raised in the objections of the Senior Puisne Judge, Justice Afridi said that propriety demands taking appropriate measures for “maintenance of harmony” within the Court, the “integrity of the institution”, and “public trust in the Court”.

“As a first step, the appropriate measure, in my earnest view, would be that a Full Court Bench of this Court should be constituted to hear the present petitions,” Justice Afridi continued adding that without taking such a measure, I submit with the utmost respect, any judgment rendered in these petitions by the present Bench may lead to the diminishing of the deference the decision requires and deserves.

“It is, therefore, most earnestly urged that the Hon’ble Chief Justice of Pakistan may consider the reconstitution of the present Bench and refer the present petitions to a Full Court Bench,” Justice Afridi concluded.