Trial of civilians by military courts: SC reserves verdict on civil society’s plea for full court

ISLAMABAD: The Supreme Court reserved judgment on the civil society’s plea to constitute a full court for hearing of the petitions against the trial of civilians by military courts, which will be announced Wednesday (Aug 2).

A six-member bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik, on Tuesday, heard the petitions.

Before rising, the chief justice said; “We deliberate on the application. If consultation is completed, then will inform about the opinion in 15 minutes, otherwise, announce about it tomorrow (August 2).” After 15 minutes, the court associate announced that the reserved verdict would be delivered tomorrow.

Advocate Faisal Siddiqui, representing members of the civil society, one of the petitioners, argued that his application has nothing to do with the objections raised by the Federation. He submitted if the case is delayed for a couple of months then no big issue, as now the families of persons in military custody are aware of where they have been kept, adding a little delay of the case would not be fatal.

The case should not revolve around the controversy of the members of the bench, he maintained. He further said that the Attorney General for Pakistan has assured the Court that no trial of these people would begin without informing the bench.

Faisal stated that two lessons can be drawn from past judicial history and judicial practice. First, no judgment of a Full Court has ever been subverted or not implemented by the State, including the military dictators. Second, in the past matters of major constitutional importance and complexity, including cases involving the constitutionality of military trials, have been heard by larger benches of nine judges and above or Full Court.

The civil society counsel further submitted that even two members who are (and were) hearing the petitions i.e. Justice Yahya Afridi on 23-06-23 and Justice Mansoor Ali Shah on 22-06-23 suggested to the chief justice to constitute a Full Court. He requested the Court to consider the reasons given by these two judges for the constitution of the Full Court.

He said three judges have recused from the bench and now how to deal with this issue has been covered in Asad Ali case PLD 1998. Justice Afridi said that two judges have not recused from the bench, but they have declined to sit in this bench.

Faisal asked the chief justice to constitute a Full Court comprising judges who are willing and available to be a part of it for adjudication on fundamental and complex constitutional and legal questions.

The civil society lawyer contended that various statements have been made by politicians and sitting minister of the present government questioning the legitimacy of the bench. He said what this Court experienced in the case of general elections in Punjab was the criminal contemptuous attitude of the government. He, therefore, requested to constitute a Full Court.

Contrary to that Kh Hassan, appearing on behalf of ex-CJP Jawad S Khawaja, stated that the urgency in this case is because the individuals have been denied liberty.

The written submitted by the former chief justice said that the court martial of civilians for criminal offences when ordinary courts are functioning violates fundamental rights. The government has provided certain specific assurances in respect of the proposed court-martial, but the tenure of the present government is in any case about to expire. When it does, any assurances or undertakings provided will also lapse.

Aitzaz Ahsan, one of the petitioners, stated: “I take it (Faisal’s plea) as astounding and unparalleled. The re-assembly of the bench will take away the confidence from this bench, and inevitably it would delay.” He said would support the idea of Full Court at this stage if 102 persons who are in military custody are shifted to judicial custody. Aitzaz’s counsel Sardar Latif Khosa said 102 persons are languishing in jail, and their families are waiting to see them. He requested the Court to proceed with this matter on a day-to-day basis and decide it.

The PTI chief’s lawyer, Shoaib Shaheen, contended that this bench has already heard the matter, adding the nation is waiting for its judgment. He further said in order to make the judgment controversial such tactics are being used.

At the outset of the proceeding, Attorney General of Pakistan Mansoor Usman Awan presented a list comprising the names of 102 suspects in the military’s custody before the court, and provided a breakdown of the arrests made following the May 9 violence.

According to the details, seven people were in custody for breaking into the General Headquarters in Rawalpindi, four for attacking the army institute, 28 for attacking the Lahore corps commander’s residence, 15 for their involvement in attacks on army garrisons in Multan and Gujranwala, eight for attacking an ISI office in Faisalabad and five for their involvement in the attack on the PAF Air Base in Mianwali.

Fourteen suspects, the AGP continued, were involved in the attack on Chakdara gateway while seven attacked the Punjab Regiment Centre in Mardan. Moreover, 13 suspects were taken into custody for attacks on army garrisons in Abbottabad and Bannu.

The AGP said the arrests had been made on the basis of evidence and the CCTV camera records, and seven of the arrested suspects are directly involved in the attack on the General Headquarters.

Justice Naqvi remarked that “pick and choose” is not allowed in the law, asking why suspects other than these 102 suspects had been released. The AGP replied that “pick and choose” had not been done in the arrests.

The CJP said there should be an independent body to review if the arrests were made on the basis of solid evidence or not. He then asked him to seek directives from the government in this regard.

Copyright Business Recorder, 2023