ISLAMABAD: Chief Justice Umar Ata Bandial expressing concern over the trial of civilians by the military courts as this is illegal and unconstitutional, said “civilians cannot be put to the rigour of the military courts”.

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.

During the hearing, the chief justice, highlighting the constitutional protection of the civilians, observed that the military courts hold summary trials, do not record the evidence in the open court, and issue reasons in their judgments. The courts (military) are not open to the public, he said and added that the civilians should not be subject to undue harshness. He; however, conceded that May 9 incidents were of a serious nature.

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Attorney General for Pakistan Mansoor Usman Awan argued that the petitioners’ lawyers have cited the cases of the 21st Amendment, Liaquat Hussain and Brigadier FB Ali. He said in the Rawalpindi District Bar Association case, a Full Court had heard the matter, and the same should be applied in this case.

The chief justice said some judges are not available in Islamabad, and some have recused themselves; therefore, at this stage, it is not possible to constitute Full Court but let me think over it and tell you tomorrow (Wednesday).

At that time, Irfan Qadir, appearing on behalf of the defence minister, wanted to raise objection on some members of the bench. However, the chief justice told him that they are keen to hear him and that “don’t give your arguments piecemeal”.

Usman Mansoor urged the chief justice to constitute the bench on those judges who are available. He then read Justice Yahya Afridi’s note, which stated; “The appropriate measure would be the constitution of a full court to hear the petitions.”

Justice Ayesha asked the AGP to also read the SC June 26 order. She said when the federal government had objected to a member of the bench, who had recused, then now how it could demand that a Full Court be constituted? Justice Munib said this bench had already heard the case at length; therefore, asked the AGP to continue his arguments.

Earlier, Supreme Court Bar Association (SCBA) President Abid Shahid Zuberi informed the bench that the Bar has also submitted a detailed petition, adding he would assist the court on five points. “It will be good to have your opinion,” CJP Bandial said.

Zuberi pointed out that the apex court in Liaquat Hussain case ruled that civilians could not be tried in military courts. He cited the judgement by ex-CJP Justice Ajmal Mian and said that only military personnel could be tried under the Army Act.

The SCBA chief argued that a constitutional amendment is needed to try civilians under the Army Act. He contended how the suspects will be connected with the crime in question. He said there were judgments, wherein, the courts had ruled that suspects could only be tried if they were directly linked with the offence.

The chief justice inquired: are you saying that a suspect’s link with the crime is the first requirement for their trial by the military courts. “According to you, civilians can be tried in military courts only after they are directly linked to the crime and after a constitutional amendment,” the CJP said.

Justice Ijaz pointed out that Liaquat Hussain case was tried without introducing a constitutional amendment. He also asked if a constitutional amendment was needed if it concerned the army’s internal matters.

“Can you summarise your position,” the CJP asked and said what would happen if the suspect was proven to be linked to the crime. Zuberi replied that in the current situation, a trial is only possible through a constitutional amendment. He said the Official Secrets Act was invoked against some suspects involved in May 9 violence but not against others.

He further said that the extent of prosecution by military trials was also not known, adding that trials were conducted by the members of the executive and not the judiciary.

He said that while the 21st Amendment had allowed for the establishment of military courts, it had also allowed for a judicial review in the high courts and the SC.

“Are you saying that police should first take the accused to regular courts and have them charged before taking them to military courts,” Justice Yahya asked. Zuberi said that according to the law, a person was not a criminal until they were convicted by the court.

Justice Bandial said the ruling in the Liaquat Hussain case stated that military authorities could investigate but not conduct the trial of civilians. Justice Ijaz then asked who would decide when the Army Act was applicable and when it was not. Zuberi replied, saying that the police were responsible for investigating and would decide as he wrapped up his arguments.

The case was adjourned until today (Wednesday).

Copyright Business Recorder, 2023