Civilians trial in military courts unconstitutional, Supreme Court

Five-member bench heard the case of civilians trials military courts,

SC issues notices to federal govt and ECP in timely election case.

Islamabad(Mudasser Chuhdary)- In a unanimous verdict, a five-member bench of the Supreme Court on Monday declared civilians’ trials in military courts null and void as it admitted the petitions challenging the trial of civilians involved in the May 9 riots triggered by the arrest of Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan in a corruption case.

The court announced its reserved ruling with 4-1 majority after hearing the arguments.

In its short order, the apex court said trial of civilians could not be conducted in military courts and the Section 2 (D) (I) was unconstitutional. The top court accepted all the petitions against military court trials of civilians.

The Supreme Court also ordered sending cases of May 9 accused to civil courts.

It further said the trial of 103 accused charged with May 9 events could only be conducted in ciriminal courts. Justice Yahya Afridi differed with the majority opinion.

Earlier, a five-member bench, headed by Justice Ijazul Ahsan, started hearing the case at 11:30am for which notices had been issued to the parties concerned. Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A. Malik are part of the bench.

The apex court heard the same case on Aug 3 last.

On July 21, the former chief justice of the Supreme Court, Umar Ata Bandial, had issued directions that without informing the apex court, the civilians trials should not be initiated in the military courts and responsible persons would be summoned in case of order violation.

It may be recalled that 13 petitions had been filed against military courts.

The petitioners are former CJP Jawwad S. Khawaja, senior counsel Aitzaz Ahsan, Karamat Ali, Zaman Khan Vardag, Junaid Razzaq, the Supreme Court Bar Association, the PTI chief, Hafeezullah Khan Niazi, retired Lt Col Inamul Rahim, and Naeemullah Qureshi.

There are fresh applications requesting the court to urge the military authorities to expedite their trial under the Army Act. The applicants include Ijazul Haq, Muhammad Rashid, Abdul Sattar, Rashid Ali, Muhammad Abdullah, Umer Muhammad, Hassan Shakir and Faisal Irshad.

Law enforcement agencies took 102 people into custody following the violence on May 9 for attacking civilian as well as military installations, including the General Headquarters in Rawalpindi, corps commander’s residence in Lahore, PAF Base Mianwali, and an ISI office in Faisalabad.

In their applications, the suspects requested the Supreme Court to implead them as a “necessary party in the case since all of them were involved in the May 9 incidents and were presently with the military authorities for the purposes of investigation and trial. Hence they were aggrieved party in the subject matter”. The applicants said they were never tortured by the military authorities during the course of investigations.

They contended that the military authorities should be asked by the court to try them under the provisions of the Pakistan Army Act 1952 and rules made thereunder so that justice be provided to them expeditiously.

The accused submitted that the applications before the commanding officer were moved of their free will, without any pressure and coercion. They pleaded that they were affected parties whose valuable rights were involved in the pending cases. If the applicants were not impleaded as parties in the case and may not be heard, they will suffer loss as they will be deprived of their valuable legal rights.

“Therefore, being aggrieved, the applicants must be considered necessary and proper party to be impleaded in the case for redressal of their grievances,” the applications added. The accused pleaded that the authorities concerned be directed that the trial of the applicants be kindly proceeded and concluded expeditiously to meet the ends of justice.

Earlier, the federal government in an application had told the Supreme Court that to safeguard the interests of the accused, it was imperative that their trials were conducted and concluded so that those who may merit acquittal could be acquitted and those who may merit minor sentences and have already served the time in custody could be released.

Moreover, the accused, if convicted, could avail remedies available under the law. The federal government had stated that the trials of these accused persons would remain subject to the outcome of the proceedings in the instant case.

While hearing a set of petitions seeking elections in 90 days, the Supreme Court has issued notices to the Federal Government and Election Commission of Pakistan seeking their reply,

The apex court has also accepted a plea by the petitioners beseeching the court not to form a larger bench to hear this case.

After issuing notices to the ECP and Federal Government, the court adjourned the case hearing till November 2.

A three-judge bench led by Chief Justice Qazi Faez Isa and comprised of Justice Athar Minallah and Justice Aminudding Khan heard the petitions seeking timely elections in the country on Monday.

Petitioner Abid Zuberi, who is also Supreme Court Bar Association President, PTI lawyer Ali Zafar and another petitioner Ibadur Rehman attended the court proceedings.

Abid Zuberi informed the court that the Supreme Court Bar Association had challenged the August 5 decision of the Council of Common Interests (CCI).

When asked by the CJP when he did he file the petition and why it hadn’t been fixed till now, Ali Zuberi said they filed the petition in August.

Justice Isa remarked, “We have been informed by the court staff that you did not request an early hearing.” This should have been an urgent matter, the CJP said, asking when the census took place. Had the case been fixed on time, it would have been decided by now, the CJP further observed.

Zuberi said it had been requested that the Election Commission of Pakistan (ECP) be ordered to ensure elections in 90 days and nullify the CCI order regarding publishing the census results.

Justice Isa asked if a census was a constitutional requirement. Zuberi replied in affirmative.

If the 2017 census is not finalized, there will be a difference in the data, CJP Isa said.

Justice Aminuddin Khan said, “If the current census is not accepted, the elections will be held on the basis of the 2017 census.”

“If the current census is annulled, what will be your plea? Will you ask for a census again or ask for elections to be held on the previous one?” asked the CJP.

“Caretaker governments are constitutional, you have written unconstitutional,” the CJP questioned.

Zuberi replied “We have demanded that the participation of two caretaker chief ministers in the Council of Common Interests meeting should be declared unconstitutional.”

Justice Minallah said that if the petitioners got into the current census, elections could face a further delay.

Zuberi said that the excuse of new delimitations due to the new census could not be used as a reason to delay the elections.

However, Justice Isa remarked that if Zuberi’s proposition was accepted, it would lead to further delay in elections.