Army can petition for trial of civilians in ATC: CJP

ISLAMABAD: The Supreme Court, led by Chief Justice of Pakistan Umar Ata Bandial, resumed the hearing on petitions challenging the trial of civilians in military courts.

A seven-member larger bench is hearing the petitions filed by former chief justice of Pakistan Jawad S Khawaja, senior lawyer Aitzaz Ahsan, Karamat Ali, and the Pakistan Tehreek-e-Insaf chief.

On the onset of the heearing, Faisal Siddiqui, the lawyer representing civil society, presented his arguments, stating that his request differed from others. He clarified that he would not argue against the legitimacy of conducting trials of civilians in military courts. Siddiqui added that he would focus on challenging certain provisions of the Official Secrets Act and the Army Act.

Highlighting his viewpoint, Siddiqui expressed concern about the trial of individuals based on personal preferences, emphasizing that the constitution prohibits the trial of specific civilians under the Army Act.

Referring to past judgments, Siddiqui cited five Supreme Court decisions related to military trials, including one in 1998 that ruled against military courts. He noted that the Army Act was not discussed in the decision opposing military courts.

Justice Mazahir Naqvi raised the issue of the commanding officer’s request to hand over civilians to military authorities, pointing out that the sources behind the request were undisclosed.

Responding to the court’s previous query, Siddiqui mentioned that these petitions could only be heard in the Supreme Court as they involved cases from multiple provinces, beyond the jurisdiction of a single high court.

Justice Ayesha Malik questioned the completeness of Siddiqui’s arguments regarding the admissibility of the applications, to which the lawyer affirmed that his arguments were complete in this regard.

Justice Muneeb Akhtar sought clarification from Siddiqui, asking whether a crime committed under the Official Secrets Act necessarily falls under the purview of the Army Act.

Siddiqui contended that the anti-terrorism court could not be requested for the extradition of accused to military courts for trial.

Justice Mazahir Naqvi pointed out the lack of information regarding when the provisions of the Official Secrets Act were invoked in these cases and questioned how a commanding officer could demand the extradition of civilians.

Justice Mansoor Ali Shah asked for clarification on the allegations made against the individuals and noted that Siddiqui had been repeatedly asked to provide an answer.

Justice Ayesha Malik sought an explanation on how a case could be registered against someone under the Army Act or the Official Secrets Act. Justice Yahya Afridi added to the discussion, inquiring about the inclusion of provisions from the Criminal Code in the Army Act.

Justice Ejazul Hassan questioned when the Army Act becomes applicable, while Justice Muneeb Akhtar asked whether the army authorities could decide to hand over a civilian to the court. He further inquired whether the army could demand extradition if a person was being tried in a civil court.

Justice Mansoor Ali Shah sought information about the internal procedures of the army regarding the decision to hand over civilians to the court. Siddiqui responded by reiterating his argument that the army cannot demand the extradition of civilians.

Chief Justice Umar Ata Bandial said that crimes under the Official Secrets Act fall under the jurisdiction of the army, and the army can file a request for the extradition of civilians to the anti-terrorism court. However, he emphasized that the extradition request must be based on solid grounds. The Attorney General was directed to provide an explanation as to why the request for extradition of civilians lacked a solid basis.

Justice Yahya Afridi highlighted Siddiqui’s suggestion to focus on procedures, stating that the court would have to consider the individual arrest cases.

The hearing concluded with the understanding that the issue at hand required further deliberation, taking into account the complexities of the Army Act and the Official Secrets Act.

The proceedings of the court hearing regarding the trial of civilians in military courts continued with notable exchanges between the justices and the lawyers representing various parties. During the session, Justice Yahya Afridi expressed his concerns about the lack of clarity regarding the specific clauses under which the individuals were sent to military courts. Lawyer Faisal Siddiqui argued that if there is evidence against the accused, he would demonstrate how they cannot be subjected to military courts.

The chief justice, while intervening, advised Siddiqui to focus on relevant points, reminding him that the day was reserved for the petitioners to present their arguments until 3 o’clock.

Justice Mansoor Ali Shah remarked that the Official Secrets Act should not solely apply to military employees, as it can also be relevant to crimes occurring within military boundaries, including restricted areas and civil buildings. He sought clarification from Siddiqui on the process of indicting someone under the Official Secrets Act.

Justice Mazahar Naqvi pointed out that Siddiqui had not yet presented the fundamental argument regarding the inclusion of provisions from the Official Secrets Act in the First Information Reports (FIRs). He raised the question of whether the commanding officer of the accused can request extradition if the FIRs do not include provisions from the Official Secrets Act.

Justice Mansoor Ali Shah emphasized the need to address two questions: the process of applying the Army Act and how the military reaches a decision to indict someone under the Official Secrets Act. Justice Ayesha Malik highlighted the absence of records and suggested that the case could be perceived as prejudiced. Justice Muneeb Akhtar inquired about the methods followed by the army when a person is wanted by them.

After a fifteen-minute break, Faisal Siddiqui, representing the civil society, resumed his arguments by referring to the Army Rules 1954. He outlined the procedure mentioned in sub-section 13 of Rule 157, which indicated that incidents occurred on May 9th and extradition was sought on May 25th. Siddiqui contended that there was no need to delve into the facts as there was no legitimate reason for seeking extradition of the accused.

Justice Mansoor Ali Shah suggested asking the Attorney General for an inquiry before pressing charges, implying that there seemed to be no substantial charges against the accused. Siddiqui stressed the importance of a thorough inquiry before charging and highlighted that civilians had the option of trial in other courts, except in cases involving army officials. He also mentioned the constitutional amendment, which imposed conditions for trials in military courts, including cases involving civilians.

Justice Mansoor Ali Shah inquired about instances where trials under the Official Secrets Act were solely conducted by magistrates, and Siddiqui confirmed that such cases had occurred, promising to present relevant decisions on the matter.

Following Siddiqui’s arguments, Ahmed Hussain, the lawyer representing former Chief Justice Jawad S. Khawaja, began presenting his case. He questioned whether civilians unrelated to the army could be tried in military courts, arguing that in the current situation, it was not permissible. He clarified that their objection was not against taking action but rather the jurisdiction of military courts over civilians.

Ahmed Hussain further argued that the Army Act was designed to maintain discipline within the Armed Forces and should apply only to those recruited into the military. Chief Justice asked which fundamental rights would be affected by trials in military courts, and Hussain cited Articles 10, 9, and 25 of the Constitution. He suggested that if the court’s hands were tied after the 21st Amendment, a full court should reconsider the matter.

Justice Mansoor Ali Shah expressed his comfort with the idea of the same bench that decided the 21st Amendment case presiding over the current proceedings. Justice Ijazul Hasan referred to the previous ruling, stating that military courts were meant for specific situations, including war scenarios.

Ahmed Hussain concluded by mentioning his uncertainty regarding the government’s position on whether a war situation exists at present. The hearing continued with further arguments and deliberations on the matter at hand.