Civilians trial in military courts: SC rejects plea for full court

ISLAMABAD: The Supreme Court on Wednesday rejected a plea, seeking the constitution of a full court for hearing identical petitions, challenging the trial of May 9 suspects in military courts.

A six-member larger bench of the apex court headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik resumed hearing in identical petitions challenging the government’s decision to conduct trials of civilians in military courts.

Barrister Aitzaz Ahsan, former CJP Jawaad S Khwaja, Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, Karamat Ali and others had challenged the trial of civilians in the military courts.

Karamat Ali, one of the petitioners the other day had filed an application in the Supreme Court through his counsel Faisal Siddiqi, seeking constitution of a full court for hearing the petition with the submission that only a judgement of the full court can counter any future contemptuous attempt to sabotage any judgment passed in the petition as well as the connected petitions.

He had submitted that the full court should include all judges willing and available for the adjudication on the fundamental and complex constitutional and legal questions.

The court on Tuesday after hearing to the counsels of all the parties, reserved the verdict.

Chief Justice Bandial said that they will hold consultations on the plea, seeking formation of full court.

Similarly, other petitioners including Aitzaz Ahsan, Supreme Court Bar Association President Abid S Zubairi and Imran Khan’s counsel Shoaib Shaheen had opposed the plea for constitution of a full court after expressing confidence over the existing six-member bench.

On Wednesday, announcing the reserved verdict on the matter, CJP Bandial said that full court is not available till September as some of the judges are not available due to summer vacations but some have cancelled their vacations and joined this bench. The chief justice however, appreciated the good wishes of Faisal Siddiqi, counsel for the petitioner who had sought constitution of full court.

The CJP said that the work of this court is totally under the Constitution and adhered to rule of law and enforcement of fundamental rights of the citizens.

He further said that what is happening nowadays in the country, the history is a witness to it.

“We don’t look to anyone’s support and will continue to do right things whether someone likes it or not,” he remarked, adding that the public will decide which law will prevail for the people of this country.

The CJP further said that whether they did their job right or not, they leave up to the history to decide.

“We are least bother to any criticism and only answerable to Allah Almighty,” he remarked.

Justice Bandial said that it is not possible to constitute a full court before September. He recalled that a larger benches were constituted twice for hearing the matter in hand but were unable to complete the ongoing case.

Meanwhile, Attorney General Mansoor Usman submitted that the other day Latif Khosa had diverted the attention of the court towards the maltreatment of an accused in the custody. The AG informed the court that he has personally gathered information about all the accused persons, adding that all the 102 accused persons who are under the military custody are being well treated and provided basic facilities including medical services while their families have been allowed to visit them.

The AG assured the court that if any maltreatment was meted out to detainees, action will be taken in this regard.

He further submitted that earlier he had also assured the court about the suspects will be allowed to hire their private counsels for pleading their cases and had also assured the court that after their conviction, detailed reasons will also be given in their verdicts, issued by the military courts.

The AG recalled that on previous hearing Justice Munib Akhtar had observed that when the incumbent government’s tenure is going to expire nearly then how he could he give assurance.

“Maybe I and the government may not be here after few days, therefore, I will contact directly with the General Headquarters on the questions raised by the court,” the AG submitted.

Referring to the court’s direction given on previous hearing regarding right of appeal to 102 accused persons who are under custody of military, the attorney general informed the court that he was busy in so many things and only his representatives were there with the government.

He further submitted that there have been certain amendments made in Pakistan Army Act 1952 by the Parliament but duo to his busy schedule he could not contact the quarters concerned in the government.

“Now I will make direct contact with Adjutant General in the GHQ who is a three star general to discuss this option of right of appeal to the 102 accused who are under the military custody,” he said.

At this, the court asked the AG that such matters are dealt with by the JAG branch of GHQ to which the AG informed that there is a Directorate of law in GHQ which is headed by a DG and JAG department is a part of that Directorate.

“In the process for consultations with three star general of the legal branch of General Headquarters,” the AG told the court that four categories will be discussed with respect to right of appeal to the accused persons.

The first category, he submitted relates to foreigners who have been arrested in Pakistan, the second relates to terrorists, while the third category relates to ordinary citizens of the country.

Similarly, he told the court that the fourth category relates to 102 accused persons who are under the custody of military.

The AG sought more time on the issue.

“Your response is positive,” the chief justice told the AG.

During the course of hearing, Justice Ayesha A Malik asked the AG in matters related to military courts as to how he will differentiate the scope of judiciary and legislature.

The judge observed that the point of separate jurisdiction of judiciary and legislature is also of immense importance. The AG submitted that the jurisdiction of court martial has been separated and in this respect he will read out different judgments of the apex court including Liaqat Hussain’s case. He submitted that military courts have been established under the law but exempted from Article 175 of the Constitution.

At this, Justice Muneeb Akhtar asked the AG as to whether on this point, the contentions shown by the petitioners were not proved right as they had contended that civilians have fundamental rights. “The fundamental rights then will be looked into by the courts which were established under Article 175 of the Constitution,” Justice Munib Akhtar remarked. The AG submitted that several laws have been enacted during the past two weeks including amendments made to the Army Act 1952, adding that he was unable to attend some of the meetings held by the committee of Parliament but was aware of some changes made to the law. At this, Justice Mazahir Ali Akbar Naqvi observed that the AG was giving a statement before the court to which Mansoor Awan replied that he was just stating facts before the court. Meanwhile, the court adjourned the hearing for today (Thursday) wherein AG will continue his arguments.