• Failure to charge accused before transferring their cases to military courts renders move illegal, lawyer argues before Constitutional Bench
• Accused must be given right to appeal before high court, Justice Mandokhail observes

ISLAMABAD: Proper legal procedures must be followed before transferring the accused to military authorities even if the May 9 attacks on army installations were considered serious offences, Advocate Faisal Siddiqui argued before the Supreme Court’s Constitutional Bench on Wednesday.

The counsel argued that the transfer of civilians accused in connection with the May 9 events to military authorities violated Section 549 of the Criminal Procedure Code (CrPC), read with Section 59(4) of the Pakistan Army Act (PAA) 1952, as well as Sections 29, 30 and 32 of the Anti-Terrorism Act (ATA) 1997.

Mr Siddiqui contended that this transfer contravened Articles 9 and 10A of the Constitution, which guarantee the right to a fair trial. He stressed that the dispute was limited to determining the correct forum for such criminal trials.

His arguments came during the hearing of intra-court appeals (ICAs) against the Supreme Court’s five-judge order of Oct 23, 2023, which nullified the trial of civilians by military courts for involvement in the May 9 violence. The hearing by the apex court’s seven-judge Constitutional Bench was headed by Justice Aminuddin Khan.

The counsel argued that civilian accused persons must be charged first to inform them of the specific offences they face before their custody is transferred for court-martial. He contended that the failure to charge the accused before transferring them to military courts rendered the transfer illegal.

He further argued that the Constitutional Bench could declare the military trials illegal without necessarily nullifying Sections 2(1d)(i) and (ii) of the PAA. He added that the discretionary power granted to commanding officers under Section 94 of the PAA to hand over accused persons was not legally valid.

The application for the transfer of the trial to the court-martial should come before a magistrate frames the charge to the accused, after which the magistrate could transfer the custody to the military authorities, the counsel said.

At this, Justice Jamal Khan Mandokhail observed that if the accused was charged for the offences, the right to appeal must be given to contest the charges before the high court.

The counsel contended that the accused could challenge the transfer of his custody to the military authorities if the magistrate concludes that their offences come under the domain of the Official Secrets Act (OSA).

Justice Musarrat Hilali observed that usually charges were framed by the relevant court after the police or any investigating agency furnished challan before the courts after completing investigations.

The counsel said that there were not one but three decisions of the five-member bench against military courts on Oct 23, 2023, namely by Justice Ayesha A. Malik, Justice Munib Akhtar and Justice Yahya Afridi. Since all the judges agreed with each other, all the reasons would be considered part of the decision, even if different, he said.

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However, Justice Mandokhail recalled that all five judges agreed that there could not be a military trial of civilians.

Mr Siddiqui maintained that the trials of civilian accused under the PAA, in conjunction with the OSA, were beyond the jurisdiction and legally flawed, as they violated Section 2(d)(ii) of the PAA and Sections 3, 7 and 9 of the OSA.

The counsel concluded that the trials also violated Articles 10A and 25 of the Constitution, as the accused were not afforded the same constitutional rights to a fair trial, including the separation of judicial and executive roles and the right to appeal before an independent judicial forum.

He requested the transfer of all trials of civilian accused under the Pakistan Army Act to general and special criminal courts, stressing that the dispute was solely about the appropriate forum for such trials, not the allegations of criminality.

Published in Dawn, February 27th, 2025