• AGP seeks one month to consider granting right to appeal; next hearing on Aug 1
• Assures judges military trials won’t begin without prior intimation to SC

ISLAMABAD: The federal government on Friday assured the Supreme Court that convictions over May 9 violence would not entail capital punishment, but sought time to ponder granting a substantive right of appeal against military court decisions.

“This requires careful consideration in view of serious implications for having a direct bearing on cases like that of Indian spy Kulbhushan Jadhav or individuals held under the charges of espionage [and] declared enemy of the state,” Attorney General for Pakistan Mansoor Usman Awan told the bench hearing challenges to the trial of civilians by military courts.

When asked how much time the government needed, he suggested a month’s time so that he could look at the issue from the perspective of international consequences, etc.

Justice Munib Akhtar pointed out that the mandate of the National Assembly would end in a month’s time after which a caretaker arrangement will be in place.

The AGP replied that the legal provision could be made through an ordinance and assured the court that the trial of 102 suspects in the military custody would not commence without prior intimation to the Supreme Court.

“You are making the statement that the government is inclined to consider the appeal aspect for the civilians being tried under the Pakistan Army Act (PAA) since this involves legislation,” obser­ved Chief Justice of Pakistan (CJP) Umar Ata Bandial while heading the six-judge bench.

“We will note down the government assurance in the court order that no trial will commence as well as the decisions of the trial court will come with reasons, evidence will be recorded and that the hearing will take place in an open court,” he said.

The AGP, however, clarified that the family members as well as a team of private counsel engaged by the suspects will have access to the trial proceedings.

The suspects, he explained, were kept in the military units and not with hardened criminals, also brushing aside the impression that they had been housed in small cells in inhumane conditions.

‘Incomplete information’

Senior counsel Sardar Abdul Latif Khosa, who represented petitioner Barrister Aitzaz Ahsan, interjected, claiming that the law officer’s information was incomplete since the suspects were living in a pathetic state.

In one case, he said, a magistrate even refused to record the statement of a suspect because of his condition since he was not even able to walk. Who was preventing the government from introducing legislation to provide the right to appeal, he asked.

The CJP observed that the court was considering asking a group of advocates to inspect places where the suspects had been housed or at least appoint a retired judge to take a look at the conditions in which the suspects were living.

The AGP retorted that it was not possible. Though, he added, family members could meet the suspects once a week. He said he would provide complete information in this regard to the judges in chambers.

The CJP also rubbished the impression when Mr Khosa tried to equate the situation with that of Ziaul Haq’s period and observed that no martial law was in place in the country and if imposed, the Supreme Court will intervene. In case the AGP’s assurance is violated, the CJP cautioned, the person concerned would be summoned to court.

Chief Justice Bandial emphasised that independence of judiciary was the cornerstone of the country’s justice system which asked for substantive appeal before an independent forum to ensure enforcement of the rights of citizens. Independence of judiciary is a part of the fundamental rights, he added.

Aitzaz Ahsan said the government was deliberately dilly-dallying to prevent a decision by the six judges in the case.

The court said it would indicate in its order — to be issued at the next hearing — that no trial should commence before first informing the court.

Death sentence ruled out

Earlier, the AGP said that though investigation was still going on, prima facie the conviction would not entail capital punishment, adding that the reasons for the military courts’ decisions would also be recorded and that the suspects would be allowed to engage the counsel of their choice.

What then will be the government’s case if sections regarding entering into the prohibited place were taken out, wondered Justice Yahya Afridi.

Justice Ayesha A. Malik also observed that when the AGP himself had stated that investigations were still on, how it could be said that no death sentence or 14-year imprisonment would be handed down to the suspects.

The AGP, however, explained that punishment of a maximum period of three years could be given under the relevant sections of the statute. He also explained the definition of prohibited areas.

Justice Akhtar observed that PAA was designed for a particular class of persons, who were members of the armed forces to whom the fundamental rights could be denied under Article 8(3)(a) of the Constitution, but it does not satisfy the test with regard to those who were not members of the armed forces or civilians.

Pointing to the AGP, Justice Akhtar observed that it seems as if the application of the fundamental right has been vested on the will of the state, but that would be a complete denial of the basic rights.

Justice Malik said the 21st Constitution Amendment had also provided certain safeguards through Article 175(3) by separating the judiciary from the executive, adding that Constitution went overboard to ensure the fundamental rights to citizens that included due process.

The AGP, however, argued that May 9, i.e. attacks on military installations by civilians, were unprecedented and could not be allowed to happen again in the future.

The CJP ignored a request by Advocate Khawaja Ahmad Hosain on behalf of one of the petitioners, ex-CJP Jawwad S. Khawaja, to stay the trial.

Later, the apex court in a four-page order fixed the next hearing for Aug 1, when the would apprise the court about the recording of evidence during the trial of suspects under the procedure applicable to criminal courts (not PAA).

Published in Dawn, July 22nd, 2023