The Supreme Court has been informed that so far no civilian is being tried in the military courts, reported 24NewsHD TV channel.
The apex court on Tuesday resumed its fourth hearing on a set of petitions challenging trial of civilians in military courts.
A six-judge larger bench led by Chief Justice of Pakistan, Justice Umar Ata Bandial and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Akbar Naqvi and Justice Ayesha Malik heard the case.
At the outset of the hearing, Attorney General for Pakistan Mansoor Usman Awan told the court that no civilian trial is going on in the military courts at this time.
President Supreme Court Bar Association Abid Zuberi also appeared in the Supreme Court. He said that they, too, have filed an application challenging the military trial of the civilians.
Chief Justice of Pakistan remarked that he was pleased to know that the SCBA also filed its application. He said he always welcomed good arguments.
Today's hearing
Chairman PTI's lawyer Uzair Bhandari started the arguments and said that DG ISPR has said yesterday that the military trial is going on. The press conference of DG ISPR contradicts the statement of the Attorney General.
Attorney General Usman Mansoor Awan said that he stands by his statement even today, the trial of any civilian has not started in the military court.
The Chief Justice said ‘We believe in your words’.
Bhandari said that he wanted to clarify that his arguments will only be limited to the trial of civilians, he will not talk about the judicial powers on the trial of soldiers.
Justice Yahya Afridi called AGP Awan to the rostrum and sought clarification from him as which Section - 2D1 or 2D2 - has been applied to the accused sent to military courts. The judge said after yesterday, clarification of this matter has become necessary.
The AGP replied that so far only Section 2D2 has been applied, Section 2D1 may be applied later.
Justice Ayesha Malik remarked that the judicial decisions apply some tests related to establish connection of civilians within the forces, how will it be determined whether the accused will be tried in ordinary courts or in military courts?
She further said that the FBLE case says that some civilians can be tried in a military court. This case talks about the civilians’ connection but under Official Secret Act, what kind of connection would it be on which the trial would be conducted?
Advocate Bhandari said that whatever will happen can only happen through constitutional amendment.
Addressing the AGP, the Chief Justice remarked that they are beating about the bush. He asked the attorney general to inform the court which crimes come under Section 2D2.
Justice Munib Akhtar remarked that in case of emergency and war, the trial could be held in military courts.
Bhandari said that the majority judgment of the 21st constitutional amendment also imposes the condition of war, Article 175 of the Constitution talks about three judicial structures, Article 9 and 10 of the Constitution talk about the fundamental rights.
He further said that all these articles are separate but they are interrelated. He said the fundamental rights require that the judge appointed under Article 175-3 should conduct the trial. The military trial of civilians does not leave a good impression with regard to the judicial system, he added.
CJP says Army’s morale is most important thing
Bhandari argued that the trial in military courts would cause anxiety in the country. He said the Official Secrets Act is not mentioned anywhere in the FIR. Then, he read out Section 2D of the Army Act in the court.
The Chief Justice remarked ‘When you talk about the Army, the most important thing is its morale. If the morale is affected, it will also benefit the enemy. If something lowers the morale of an army man, then it will again benefit the enemy'.
Justice Mazahir Naqvi inquired whether there can be bail in the punishment awarded under the Official Secrets Act.
The petitioner's lawyer replied ‘Yes, bail can be obtained in the punishment awarded under the Official Secrets Act. He continued but there is no mention of the Official Secrets Act in the FIR. Anti-terrorism provisions were added.
The Chief Justice remarked ‘how accusations are made without evidence. This matter is beyond understanding. There is a flaw in the law’.
Justice Ijazul Ahsan said that the record shows that the detail of the allegation does not exist.
Bhandari added that the FIR is being conducted under the Anti-Terrorism Act, but the trial is conducted under the Army Act. He said that poet Ahmed Faraz was accused but he was not formally charged.
Zaman Wardak, another petitioner, submitted his written arguments against the trial in the military court.
Court asks AGP to ensure persons detained by military can talk to their families
After this, Attorney General Mansoor Usman Awan started his arguments. He said in his arguments he would provide information about the trial in military courts along with the written documents. He said that he would also assist the court as to why there is no mention of the FIR in the Official Secrets Act.
He said that the charges were also provided while taking custody of the accused. After the May 9 incident, 15 days were taken, and then the process of handing over of the accused to the military courts took place.
The Chief Justice remarked that the method of charging under the Army Act is in the rules. He inquired whether he would submit his written arguments today.
The AGP said that he would submit the written arguments after the break.
CJP Bandial asked the AGP for detail of his submissions.
Awan said that currently 102 accused are in military custody. The accused will be allowed to talk to their families on the phone, he informed.
The Attorney General said that the food given to the accused is much better than the usual food.
The Chief Justice inquired that it is a simple question why the list of people under custody is not made public.
Justice Yahya said that first make sure that the detained persons could talk to their parents.
The Chief Justice said that on Eid, everyone should know who is in custody, everyone should also talk to their families on the phone on Eid.
The Attorney General replied that he would inform the chief justice in the chamber within an hour regarding making the list public.
After this, the hearing was adjourned indefinitely.
During yesterday’s hearing, Chief Justice Bandial rejected the plea to issue a stay order on petitions against civilians’ trial in military courts while expressing his hope that no civilians would be tried in military courts while the matter was being heard in the Supreme Court,
The Supreme Court also ordered the attorney general to provide complete details of 102 people who were in military custody.
As soon as the seven-member SC bench started hearing yesterday, the bench dissolved after Justice Mansoor Ali Shah recused himself after an objection was raised by the federal government to his inclusion pleading that one of the petitioners was his relative.
Justice Shah, in his note, said petitioner Jawwad S Khawaja was his relative, but added the latter had filed the petition in the public interest, not involving any interest of his own.
Earlier, Chief Justice-designate Justice Qazi Faez Isa and Justice Sardar Tariq Masood also left the bench.
The originally nine-member SC bench has now been reduced to a six-member bench which is hearing a challenge to military trial of civilians.
On the other hand, in his press briefing yesterday evening, the DG ISPR (military media wing) told journalists that disciplinary proceedings were initiated against the military’s own officers too due to their negligence to protect military installations from violent protesters following the arrest of PTI chief Imran Khan in a corruption case.
He said military courts were indispensable to hold perpetrators and facilitators of the May 9 violence accountable, adding that 102 individuals were facing trials in these courts.
The statement came after the Chief Justice’s remarks who said that the SC expected military courts to stay proceedings against violent protesters. The ISPR chief said that proceedings against those referred to military courts were already underway.
Reporter Amanat Gishkori