The Supreme Court on Monday declared the military trials of civilians suspected of involvement in violent protests in the country after PTI Chairman Imran Khan’s arrest on May 9 null and void, reported 24NewsHD TV channel.
The court has admitted the petitions challenging the trial of civilians involved in the May 9 riots.
Pronouncing the verdict reserved earlier in the day, a five-judge larger bench of the apex court also ruled that Army Act’s Section 2(1)(d) was against the Constitution.
The larger bench was headed by Justice Ijazul Ahsan and comprised of Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik.
In a majority 4-1 verdict, the trial of civilians in military courts has been declared null and void by the 5-judge bench, but Section 2(1)(d) of the Army Act has been declared unconstitutional by 4 judges, with one judge, Justice Afridi, dissenting.
The court also declared Section (4)59 of the Official Secrets Act unconstitutional.
The court has pronounced that if the trial of a citizen has started in a military court, it is also declared null and void.
In the light of the incidents of May 9 and 10, 102 arrested persons whose list was presented in the court, the Supreme Court has ordered to conduct their trial in the ordinary criminal courts.
The provisions of the Army Act which were presented before the court under which a civilian could be tried, the court also declared these provisions to be unconstitutional.
Earlier, after hearing the arguments from all sides earlier, the apex court bench reserved its decision. “We will issue a short order if we come back shortly. Otherwise, we will give the date for issuing the short order,” Justice Ijazul Ahsan remarked.
Today’s hearing
During the hearing of the case, The court dismissed 9 miscellaneous petitions on grounds of withdrawal.
Jawad S. Khawaja's lawyer Ahmed Hussain appeared at the beginning of the hearing. He said that he would like to read the order of the previous hearing.
However, Justice Ijazul Ahsan said that in the last hearing, the Attorney General was on the rostrum, so let the Attorney General finish his arguments first.
Lawyer of former CJP Jawad Khawaja said that he wanted to read the order of August 3 in front of the court, on which Justice Ijazul Ahsan said that they have read that order.
Then addressing the Attorney General, Justice Ahsan asked him to give his final arguments.
Lawyer Salman Akram Raja said that military courts have started the trial of civilians despite giving assurances in the court, to which Justice Ahsan remarked that they are aware of this, but the court would listen to the Attorney General first.
The Attorney General argued that he would give a summary of the previous hearing and he would explain why constitutional amendment was not necessary for the present trial. He said he would also discuss Article 175, would read the paragraph of Liaquat Hussain case, would also give arguments in the light of the decision of the 21st Constitutional Amendment. He said he would also answer the question whether the status of the accused is obtained after the indictment.
The Attorney General assured the court that the May 9 accused would be tried in military courts in the same manner as civil courts, evidence would be recorded and detailed reasons would also be written in the decision.
Justice Ijazul Ahsan inquired what was the status of the accused in 2015, whether the accused in 2015 were our citizens or members of banned organizations.
The Attorney General said that among these accused were citizens and members of banned organizations. He, however, said that the accused would be tried under Section 2(1)(d).
He said that the judges had asked the question how the charge would be framed against the accused.
“All the requirements of a criminal case will be fulfilled in the trial under the Army Act and the trial of the accused on May 9 will be in the style of a criminal court, the reasons given in the decision and the evidence will be recorded”, the AGP said.
Attorney General Usman Mansoor said that all the requirements of Article 10-A of the Constitution would be fulfilled, appeals could be made in the High Courts and then in the Supreme Court. He said that he would also give references in support of his argument that the cases pertaining to attacks on restricted areas and buildings could also go to military courts.
Justice Ahsan inquired of the AGP if the constitutional amendment was necessary to try terrorists and not for ordinary citizens? The judge said he is trying to understand his arguments.
The Attorney General said that there is no need for any amendment if the accused are directly related to the armed forces.
Justice Ayesha Malik said that the Army Act talks about discipline within the armed forces, while Justice Mazahar Ali Naqvi said that he should read the preamble to the Army Act.
Justice Ijazul Ahsan remarked that if one reads the law, it becomes clear that it is meant for the forces, how do you see its relation to civilians.
The Attorney General said that the Army Act also requires officers to perform their duties, preventing someone from performing their duty also becomes an offense under the Act.
Justice Ijazul Ahsan remarked that the law also talks about the people inside the armed forces.
The Attorney General said that as far as discipline in the forces is concerned, this law only talks about the armed forces, but when they are stopped from duty, then other people also come under the same law.
Justice Ayesha Malik remarked if we accept your interpretation, would you apply this law to anyone? What will happen to fundamental rights in such a case?
The Attorney General said that the Army Act also deals with those working temporarily with the armed forces.
Justice Ijazul Ahsan said that this matter is only related to service.
The Attorney General stated that the Constitution recognizes that members of the Armed Forces might be prevented from performing their duty by common citizens.
Justice Ayesha Malik said, “The Constitution says that no law will be made against the fundamental rights, the Constitution and the law oblige the armed forces to perform their duties. The law tells them that if they cannot perform their duties, the acquisition of the fundamental rights enshrined in the Constitution will not apply on you, you are taking it the other way round. You are saying that whoever disturbs, the law is for them.”
The Attorney General said that there is also a term which explains a connection with the armed forces, adding that he would also like to argue from the Liaquat Hussain case.
Nine accused move SC for early conclusion of their cases by military courts
On Sunday, at least nine accused facing trials under the Army Act approached the apex court for early conclusion of their cases by the military courts. In their separate applications, the suspects pleaded that they have complete faith and confidence in the military authorities to provide justice to them and to other accused persons.
Govt informs about commencement of military trials
On Sunday, the federal government filed a miscellaneous petition in the Supreme Court, informing it about the start of civilians’ trials in the military courts.
The federal government’s plea told the court that as many as 102 people had been arrested due to their involvement in the May 9 and 10 violent events.
“The trial has been started in military courts to provide justice to the arrested persons. The trial is being conducted keeping in view the interest of the detainees,” the petition said.
“He who is not found guilty in the trial by military courts shall be acquitted. The trial in military courts will be subject to the decision of the case pending in the Supreme Court,” it added.
The application also stated that if the accused persons were convicted, they could also avail remedies under the law.
The application further maintained that the trials of these accused persons shall remain subject to the outcome of the proceedings in the titled petition.
The persons taken into military custody were arrested under the Pakistan Army Act, 1952 and the Official Secrets Act.
The arrested persons are in custody for their involvement in the attack on Hamza Camp, Bannu Camp and Gujranwala Camp.
Previous hearing
During the previous hearing on Aug 3, then Chief Justice Umar Ata Bandial remarked that the military would not be allowed to take “unconstitutional steps” as a six-judge bench indefinitely adjourned the case. He expressed regret and grief over the May 9 events. But at the same time, he stressed that he didn’t want the “army to raise their weapons against the people of Pakistan”.
Reporter Amanat Gishkori