AGP’s statement on no civilian being tried in military courts yet, SC told

Govt will overcome snags in military court trial of civilians: Khawaja Asif Khawaja says his stance not new on matter of civilians’ military trial.

Islamabad_The PTI chairman’s counsel Uzair Bhandari on Tuesday told the Supreme Court that the ISPR director general said on Monday that trials in military courts are under way.

“The press conference contradicts the attorney general for Pakistan’s statement,” he added.

The remarks came as the Supreme Court resumed hearing various petitions against the trial of civilians in military courts.

A six-member bench headed by Chief Justice of Pakistan Umar Ata Bandial is conducting the hearing. The bench also includes Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahar Naqvi and Justice Ayesha Malik.

Attorney General for Pakistan Mansoor Usman Awan, however, insisted that he stood by his statement, adding no trial against any civilian has been started in the military courts.

“We trust you,” CJP Bandial said.

Bhandari clarified that his arguments will only be limited to the trial of civilians.

Supreme Court Bar Association President Abid Zuberi earlier appeared on the rostrum and said he had also petitioned the court to become party to the case.

“We will welcome positive arguments,” the CJP remarked.

He further said he would not comment on the judicial powers on the trial of soldiers.

On being asked by Justice Yahya Afridi, the AGP said so far only Section 2(d)(2) of the Army Act has been applied to the suspects. He added that Section 2(d)(1) may apply later.

Justice Ayesha Malik asked how it will be determined whether the suspects will be tried in ordinary courts or military courts.

Justice Malik remarked that the FPLE case says some civilians can be tried in military court, adding this case deals with the relationship of civilians within the military institution.

Uzair Bhandari said whatever happens can only be done through a constitutional amendment.

The CJP asked which offenses fell under Section 2(d)(2), and asked the AGP to assist the court over this section.

Justice Akhtar remarked that in cases of emergency and war, trials can be conducted in military courts.

Lawyer Uzair Bhandari said the court-martial of civilians does not leave a good impression on the judicial system. He further said the military court trials will create an air of uncertainty in the country.

The FIR does not mention the Official Secrets Act anywhere, he asserted, and then read out the Section 2(d) of the Army Act.

He added that the representatives of the Ministry of Defence were present in the court and could explain the situation better.

At this, Justice Ayesha observed: “We are currently reviewing existing judicial precedents.”

Moreover, the CJP expressed faith in the AGP’s statement, directing the court’s attention to the matter at hand.

Lawyer Bhandri then resumed his arguments pertaining to the case, contending that civilians cannot be tried in military courts.

“I will not talk about the trial of soldiers and the powers of the court,” he said.

“However, whether a crime can come under the Army Act or not is a different question,” he said, adding that it must be determined whether there can be a trial [of a civilian] in military courts for crimes related to the forces.

Justice Ahsan remarked that Article 175(3) of the appointment of judges came in 1986.

“In comparison to the judicial precedents you are talking about, the circumstances and events are completely different now,” he observed.

Justice Munib then asked Bhandari what protection the Constitution gave civilians that military officers did not have.

Bhandari responded that the fundamental rights mentioned in the Constitution do not apply to military personnel and officers.

“My arguments will be against the military trial of civilians only. I have nothing to do with the issue of trial against soldiers,” he added.

Bhandari also submitted that Parliament could not allow civilian trials in military courts without a constitutional amendment, adding that in the 21st constitutional amendment, the principle was established that a constitutional amendment is required for trying civilians [under the Army Act].

Justice Ayesha asked: “[But] what if there is an aspect of an internal relationship, then can’t the civilian be tried in the military courts?”

Justice Ahsan further observed: “Principles such as threats to war and defense of domestic relations are laid down in the judgment of the 21st Amendment case.”

Turning to the AGP, Justice Afridi asked if civilians were being linked to the forces internally.

The AGP responded that the inquiry looked into accusations of facilitation from within the army.

Justice Ayesha observed that civilians could be tried in a military court, according to the F B Ali case.

“According to judicial precedents, if civilians have internal relations in the forces, there can be a trial in military courts,” she added.

However, she asked who was responsible for determining that a civilian was internally connected and, therefore, would be tried in a military court.

Justice Afridi then asked the AGP under what law the cases of the accused were being transferred to army courts.

AGP Mansoor responded that it was done under 2D (1).

At this point, the CJP remarked: “Interestingly, we don’t have an official Secret Act available.”

Adding that there was nothing in writing available on the matter, he asked the AGP to “assist the court” as to what offenses fell under 2D (1).

Justice Ahsan added that the discretionary power to allow trials of civilians in military courts should be exercised transparently, while Justice Akhtar remarked that according to the F B Ali case, civilians could be tried in military courts under the Army Act in war situations only.

“If there is no war situation, a constitutional amendment is required for trying civilians in military courts.”

Continuing his arguments, the PTI counsel argued that civilians could not be deprived of fundamental rights.

Justice Ayesha observed that Section 2D of the Army Act says it will apply to those not members of the armed forces.

Bhandari responded that it applied only to those civilians who “influence” the forces’ operations.

Justice Naqvi asked: “How did the ATC allow the transfer when the crime listed in the Army Act is not on record?”

The PTI counsel said: “Article 175 (3) of the Constitution deals with the judicial procedure.”

“Articles 9 and 10 of the Constitution talk about fundamental rights,” adding that while these articles are separate, they are related.

“Fundamental rights require that the judge appointed under Article 175 (3) should conduct the trial,” Bhandari contended and said that the court martial of civilians does reflect nicely on the judicial system.

“No one willingly allowed civilians to be tried in military courts,” he said.

“For trial under the Army Act, the offence must be under the Official Secrets Act, Justice Ayesha noted, requesting that the Official Secret Act be produced.

According to the Official Army Act, it is an offence to attack or use any restricted area for the enemy’s benefit, Bhandari said.

The CJP then remarked on the importance of army officers’ morale.

The hearing was adjourned for half an hour.

While,

Defence Minister Khawaja Asif on Tuesday noted that there were some legal hurdles in prosecuting civilians in military courts, but added that the government would be able to remove the same.

Replying to various questions regarding the May 9 mayhem and its consequences during an interview to a private TV channel, the defence minister passed these remarks as he praised the military for moving ahead with the accountability process and taking actions against the responsible persons.

Khawaja Asif also said that blocking social media platforms was always an option and the government exercise the powers whenever required.

His comments were in reference to the government stance that the PTI used social media as a tool to incite hatred and violence against the state institutions in the country.

The same argument was repeated by the defence minister who said use of social media platforms was instrumental in inciting people to resort to violence, leading to the attacks on military installations and other state assets on May 9.

Khawaja Asif argued that the social media platforms were regulated in China and even in the developing world like Europe.

Earlier on Monday, Inter-Services Public Relations (ISPR) Director General Maj Gen Ahmed Sharif Chaudhry, talking about the military courts case being heard in the Supreme Court, said: “The military courts did not come into existence after May 9, they were already functioning. The civil courts have transferred these cases to the military courts after checking evidence in line with law,” he said.

He made it clear that the suspects had legal rights including the right to appeal. “They also have the right to appeal in the Supreme Court. The Army Act has been part of the law and Constitution for decades.”

The plea

Former CJP Khawaja filed a petition under Article 184(3) of the Constitution, challenging the trials of civilians through military courts.

The Federation of Pakistan has been made respondent through the law, defence secretaries, and provincial chief secretaries have been made respondents in the plea.

The former chief justice submitted that the instant petition does not seek to support or attack any political party or institution, adding that it raises an important constitutional question involving fundamental rights that requires adjudication in the present circumstances.

“The petitioner has no personal interest in this case and the relief sought is for the benefit of all citizens regardless of political affiliation,” Justice (retd) Khawaja said in the petition, submitted through his counsel Khawaja Ahmad Hosain.

The former CJP prayed the apex court to declare that when ordinary courts are functioning, court martial of civilians by military courts is unconstitutional.