The Supreme Court of Pakistan on Friday rejected a plea to issue stay order on military trials of civilians suspected of involvement in May 9 violence, reported 24NewsHD TV channel.
Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial remarked “Why the stay order? There is no need to issue one as the military trials have not yet started.”
Justice Bandial then remarked that the military trial of civilians will not start without informing the apex court.
Earliler, Attorney General for Pakistan (AGP) Mansoor Usman Awan informed the Supreme Court that after the introduction of the 21st Amendment fundamental human rights are not applicable on the Army Act.
The AGP said this as the Supreme Court of Pakistan resumed the hearing of a set of petitions challenging the military trials of civilians suspected of involvement in May 9 violence.
A six-judge larger bench led by Chief Justice of Pakistan (CJP) Justice Umar Ata Bandial and consists of Justice Ijaz ul-Ahsan, Justice Yahya Afridi, Justice Munib Akhtar, Justice Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik presided over the case.
During the last hearing on Wednesday, the apex court had issued a directive, instructing AGP Mansoor Usman Awan to seek guidance from the government concerning the right of appeal in military courts.
As the hearing resumed on Friday, the AGP said the apex court had issued him directives at the last hearing during which he had spoken about the “organised” plan behind the violent events of May 9. “From the video clips shown in court, it is evident that a lot of people were involved in the events of May 9,” Awan said and added “Despite the large numbers, only 102 people were pinpointed for court martial after careful examination of the evidence.” The AGP maintained “We have to prevent such incidents in future.”
Awan remarked “There is a difference between a civil crime and a crime committed by a civilian.” On this, Justice Naqvi asked how it was decided who would be tried in military courts and who would not. The AGP replied offences under Section 2(1)(d) of the Army Act would be tried in military courts. “Is the Army Act outside the bounds of fundamental human rights?” asked Justice Afridi. Awan replied in the affirmative, saying fundamental rights were not applicable on the Army Act, arguing there was mention of the Army Act being applicable to civilians even before the 21st Amendment.
“From your arguments, it appears as if fundamental rights have ended,” Justice Akhtar remarked. He then proceeded to ask whether Parliament could amend the Army Act, to which the AGP replied in the affirmative.
“The law should be in context of fundamental rights,” Justice Akhtar said, adding “Your argument is that it is the state’s will to give or not give fundamental rights.”
Interfering, CJP Bandial observed “Fundamental rights can only be done away with through legislation. Independence of the judiciary was a central part of Pakistan’s justice system.”
The CJP further declared “The Supreme Court had declared independence of the judiciary a fundamental right. We can’t leave everything to the trial court. In 2015, the Constitution was pushed aside through the 21st Amendment. But that is not the case now.”
The court observed citizens were accorded fundamental rights under the Constitution and wondered how these could be removed through specific restrictions under the Army Act.
AGP Awan said he will first talk about the trial process in military courts before answering the questions posed by the apex court. He said “The commanding officer assigned to a particular area sends a report to the General Headquarters (GHQ). Under the Army Act rules, an inquiry is initiated; in the next phase, the suspect’s custody is sought.”
Govt seeks one month's time to legislate on issue right of appeal to military detainees
During the hearing of the civilians’ trial in the military courts, the attorney general has assured the Supreme Court that detailed reasons will be mentioned in the trial decisions of the military courts on the events of May 9, while seeking one month's time to legislate on the issue of giving the right of appeal to 102 detained persons.
The AGP told the court that the government needs time to consider whether the accused will have the right to appeal as this issue needs to be considered very carefully.
Referring to the Kulbhushan case, the AGP said that we have to proceed in such a way that the country's position is not affected, some things he is not mentioning, a lot of things have to be kept in mind, yesterday the court said that appeal is an integral part, so the matter needs to be reviewed very carefully.
The chief justice asked the AGP if he was talking that the government is ready on this matter. He asked him will it be through legislation. The AGP replied that yes, it will be through legislation, but he stands by this statement that there will not be a trial yet.
The chief justice said that if there is progress in the trial, inform the court, on which the attorney general said that yes, the court will be informed.
The top judge remarked that the court can appoint a retired judge as a focal person to meet 102 people.
The AGP said that he would discuss that matter with him in chamber.
The chief justice remarked that the court wants the detainees to get basic rights, the detainees should be allowed to meet their families.
Lawyer Latif Khosa said that what is happening now was happening during the Ziaul Haq era, on which the Chief Justice remarked that do not compare the present era with the Ziaul Haq era, if martial law is imposed in the country, we will intervene.
The Chief Justice said that the bench will consult on the attorney general's request for one month's time, the next date will be included in its order after the consultation.
The AGP said that we are bringing an ordinance to give the right of appeal to the detainees and one month's time is required in this matter.
Justice Muneeb Akhtar remarked that one month is too much time, the term of the current National Assembly is ending on August 12.
The attorney general replied that we have to keep the international perspective in front, an ordinance can also come in the caretaker government tenure.
Aitzaz Ahsan said that the government is deliberately delaying so that this six-member bench cannot decide the case.
Chief Justice Bandial remarked that if the assurances given by the AGP are not followed, the concerned person will be summoned to the Supreme Court.
Stay order plea rejected
The plea of Jawad S Khawaja's lawyer seeking a stay order on the military trials of civilians was also rejected.
The Supreme Court adjourned the hearing of the case related to military courts for an indefinite period.
After the adjournment of the case, the judges left the courtroom.
Reporter Amanat Gishkori