Military courts trial: custody can only be transferred after indictment, says Siddiqi

ISLAMABAD: The seven-member Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan, resumed hearing of the appeal against trial of civilians in the military courts.

In today’s hearing, lawyer Faisal Siddiqi will present arguments on behalf of civil society. Yesterday, Uzair Bhandari, counsel of former chairman of Pakistan Tehreek-e-Insaf (PTI) Imran Khan, concluded his arguments.

“There are not one but three decisions of the five-member bench against military courts,” Siddiqi said, adding that Justice Ayesha Malik, Justice Muneeb Akhtar and Justice Yahya Afridi gave these decisions. “All the judges agreed with each other’s decision,” Faisal Siddiqi said.

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The counsel pointed out that if the decisions of the judges are the same and the reasons are different, then all the reasons are considered part of the decision.

To this, Justice Muhammad Ali Mazhar said that the judges had written decisions, not additional notes. Justice Jamal Khan Mandokhail added that all five judges agreed that there cannot be a military trial of civilians.

Siddiqi said that he does not agree with Uzair Bhandari’s position, that the jurisdiction of intra-court appeal is limited. “Bhandari relied on Justice Mansoor Ali Shah’s note in the Practice and Procedure case, the counsel said.

Justice Mazhar responded, “Justice Mansoor had declared the right to appeal valid in the past, I disagreed,” adding, “If the right to appeal had been given [for past cases], appeals would have started coming from [cases dating back to] 1973.”

Siddiqi said, “If the scope of appeal is limited, many of our appeals will also be dismissed.”

Justice Aminuddin said, “The intra-court appeal is heard by the larger bench. Since the larger bench is hearing the case for the first time, so it is not bound by the previous decision.”

Faisal Siddiqui said, “The decision to hand over the civilian to military custody was not correct. Transfer of custody can only happen after the indictment has been filed.”

Justice Mazhar said, “The person who applies for bail even after the indictment is still called as accused. He does not become a criminal even after the indictment.”

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To this Siddiqui said, “It can only be determined after the indictment has been filed if the nature of the crime is related to the Official Secrets Act.” He added that in the Dewan Motors case verdict, the constitutional bench laid down the principle that if the basis is wrong, then the structure cannot be maintained.

Justice Naeem Akhtar Afghan said to the council, “You had said that the trial of civilians can be invalidated even without repealing the law. The Official Secrets Act is not included in the schedule of the Anti-Terrorism Act.”

Justice Aminuddin asked, “Were there trials in military courts on the provisions that fall under the ATC category?”

The lawyer responded, “I think the sentences from military courts have been awarded under the Official Secrets Act.”

Justice Mandokhail said, “Even the Armed Ordinance is not in the schedule of the Anti-Terrorism Act. If the provisions of the Armed Ordinance are included in the murder, then the ATC conducts the trial.”

Justice Mazhar said, “Those who have been tried in a military court cannot be tried again,” adding that it is not possible for a military court to sentence under the Official Secrets Act and then send the case to the ATC.

Justice Mandokhail said, “There is no concept of FIR in the Army Act.”

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Lawyer Faisal Siddiqi said, “For the custody of the accused, the magistrate reviews the case and sends it to the Anti-Terrorism Court (ATC). If the application comes directly, then the ATC judge should give reasons in the verdict.”

The Constitutional Bench heard Faisal Siddiqi’s arguments, and then adjourned the hearing on the question that what legal options are available to the accused have after transfer of custody.

The hearing will resume tomorrow and Siddiqi will continue his arguments.