Attorney General for Pakistan (AGP) Mansoor Usman Awan told the Supreme Court (SC) on Friday that 102 people were in the army’s custody as the top court resumed hearing pleas challenging the trials of civilians in military courts.

A seven-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayyed Ma­­zahar Ali Akbar Naqvi and Justice Ayesha Malik heard the set of petitions.

A day earlier, the CJP had ignored a request to issue an interim or a stay order to stop the trial of civilians in the military courts, saying it was not possible without hearing the arguments of AGP Awan first.

While issuing notice to the respondents, the court had asked the AGP to furnish the total number of detained suspects in civil and military custody on account of offences allegedly committed by them on May 9.

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The AGP took the rostrum at the tail-end of today’s hearing, telling the seven-member bench that 102 people were in the army’s custody, adding that none of these were women or minors.

“No journalists or lawyers are in the army’s custody,” he said.

AGP Awan said that authorities had doubts about one of the people in custody being below 18 years of age. “His tests are being conducted. If he is less than 18 years of age he will be released,” the AGP said.

“Is it a policy decision that women and children will not be taken into custody? What is the policy regarding journalists?” CJP Bandial asked.

“No journalist was detained for the events of May 9,” AGP Awan said, adding that the federal government didn’t have a “policy” in this regard.

CJP Bandial then said that there were caretaker governments in two provinces. He told the AGP to contact the provincial governments and ask them about the policy regarding lawyers and journalists.

“Some members of the bench have reservations regarding [the treatment of] lawyers and journalists,” he said.

The hearing was later adjourned till 9:30am on Monday (June 26).

At the outset of the hearing, the Punjab advocate general had submitted a report detailing the number of people arrested in the province in the aftermath of May 9.

The report showed that detention orders for 2,258 people were issued under the Maintenance of Public Order, adding that 21 were in jail.

The report also showed that 1,888 people had been arrested in 51 terrorism cases, adding that 500 had been discharged while 232 were on bail. It further said that 4,119 had been arrested in 247 other cases, adding that 1,201 people had been discharged while 3,012 were on bail.

The hearing

Lawyer Faisal Siddiqi, who was representing members of civil society, was the first person to present his arguments as the hearing resumed shortly after 9:30am.

Siddiqi contended that he would not argue the point that civilians can’t be tried under the Official Secrets Act in military courts. He also said that he would not comment on what occurred in the country on May 9.

He said that there were examples of civilians being tried by military courts in the past. He contended that those being tried in anti-terrorism courts would have the right of appeal, whereas the same was not available for those being tried in military courts.

The lawyer said that there were previous SC verdicts relating to trials in military courts. “In 1998, a verdict was issued against military courts,” he said, adding that the Army Act was not brought under discussion in the verdict.

“It is very rare that civil courts are bypassed,” he said.

“What principle has been set regarding the Army Act in other cases?” Justice Ayesha asked. She also asked about the basis on which civilians were being tried under the country’s military laws. “What are the specific circumstances under which there can be a trial in military courts?” she added.

Siddiqi said that past judgements stated that there should be a “clear distinction”. “We are not saying that there shouldn’t be a strict trial of suspects. What can be a tougher trial than one conducted in an anti-terrorism court,” he said.

Justice Shah then remarked that it was announced that trials would be conducted in military courts because of national security. He said that the laws mentioning trials in military courts for those intruding on land relating to state security.

Siddiqi said that the court had asked during yesterday’s hearing whether the pleas should have first gone to the high courts. “The matter at hand concerns more than one province,” he said, adding that it could not become the jurisdiction of a single high court.

“These pleas are only admissible in the apex court,” the lawyer said.

Justice Ayesha then stated that it was possible the crime committed by the suspects handed over to military courts was of a different nature. “You are stating only on the basis of assumption that there is no evidence against them,” she pointed out.

Justice Afridi said that Siddiqi’s arguments were heading in a “general” direction, adding that he was also not aware of the sections under which suspects were handed over to military courts.

Justice Shah said that the law did not say that the Official Secrets Act would only be applicable to those in the armed forces. He said that the act was also applicable to being within the military’s jurisdiction. The judge noted that the Official Secrets Act was also applicable to buildings in restricted areas and some civilian buildings.

Justice Naqvi then asked the lawyer when charges under the Official Secrets Act were added to the FIRs against the suspects. He also wondered whether a commanding officer could ask for suspects to be handed over if provisions of the Official Secrets Act were not included in the FIR.

Justice Shah asked Siddiqi to answer the court’s questions. “You tell us the process for when the Army Act is applicable. How is a decision reached in the army that a person is an accused under the Army Act?” he asked.

“On what offences is the Official Secrets Act applicable?” Justice Ahsan asked.

Justice Naqvi also pointed out that the lawyer had not yet informed the court when sections of the Official Secrets Act were included in the FIRs. “Also tell us the procedure for a commanding officer asking civilians to be handed over,” he said.

“First tell us how the army alleged that these suspects had committed a crime,” Justice Shah said. “We are repeatedly asking you questions but you are not answering them,” he told the lawyer.

“Tell us how it is decided that a case will be registered under the Official Secrets Act or the Army Act,” Justice Ayesha said.

“When a civil trial is ongoing, how does the army decide that the suspects should be handed over?” Justice Shah asked. Justice Ahsan also asked the lawyer to inform the court about when the Army Act was applicable.

“If a person is being tried in a civil court, can military authorities ask for him to be handed over?” Justice Akhtar asked.

“That is my argument, that the army can’t ask for suspects to be handed over,” Siddiqi responded. However, Justice Shah asked the lawyer to show the court any documents in which the army had demanded the handing over of suspects.

Justice Ahsan said that the law also stated that a reference was sent to the federal government when the army asked for suspects to be handed over. He said that a final decision was taken after the federal government’s approval.

“When did the government approve trials of civilians in military courts?” Justice Naqvi asked.

Siddiqi said that the matter at hand concerned deciding the “forum” where the trials would take place.

“How is the forum of the trial decided, that is exactly our question,” Justice Ayesha said.

“It is common sense that the army will decide cases under the Official Secrets Act,” CJP Bandial said. He further said that the army could file a request in an anti-terrorism court to hand over suspects, adding that the request by the army in this regard did not have solid grounds.

“The AGP will be asked why the handing over of civilians was not requested on solid grounds,” the top judge said.

Justice Shah then asked about the process of how the army asked for a suspect to be handed over.

“There is no procedure for a complaint or FIR in the Army Act,” Siddiqi said.

“When a commanding officer goes to a magistrate, on what basis does he go and ask for a [suspect]?” Justice Shah then asked. Siddiqi said that the answer lay in Section 549 of the Code of Criminal Procedure.

“There should be an inquiry or an investigation for invoking the Official Secrets Act,” the CJP remarked. He said that the suspects’ remand order did not state how and on the basis of what evidence they were handed over.

When the hearing resumed after a short break, Siddiqi said that details about how a trial would commence under the Army Act were included in the Army Rules, 1954. “The process is detailed in Ruled 157, sub-section 13,” he said.

“The events of May 9 and 10 happen and handing over of suspects is sought on May 25,” he said. The lawyer said that there was no reason to seek the handing over of suspects.

Justice Shah stated that the court would ask the AGP about the inquiry before the framing of charges. “You are trying to say that there are no apparent charges against the suspects,” the judge said.

“I am saying that a strict inquiry should take place before they are charged,” Siddiqi said. Apart from 1988, never has a civilian government allowed a civilian’s trial in military courts, he said as he concluded his arguments.

Ex-CJP Jawwad S. Khawaja’s lawyer, Ahmed Hussain, then began his arguments. Hussain said that the main question was whether civilians, who were not related to the army, could be tried in military courts.

“I am of the opinion that in the current situation, civilians can’t be tried in military courts,” he said. The lawyer said that his client was not opposing punishment for the accused. “Our point concerns the forum, that military courts are not the forum [for trying civilians],” he said.

He also said the other question was whether a civilian could be court-martialled under the Army Act. He said that the Army Act was meant to maintain discipline in the armed forces as the hearing was adjourned for Friday prayers.

When the hearing resumed, Hussain said that every citizen had the right to fair trial, adding that they could not be deprived of this right. He further contended that decisions for a court martial were also not easily available.

“Who conducts court martial proceedings?” asked Justice Shah.

The lawyer said that there was a “panel” which conducts proceedings. He further said that verdicts issued by military courts only stated whether the accused was guilty or not. He said that the AGP could inform the court whether the reasons were included in the verdict or not.

“The army chief is the final authority in the whole process,” the lawyer said. He also pointed out that a special law was promulgated to give Indian spy Kulbhushan Jadhav the right of appeal to ensure that his rights accorded under the Vienna Convention were not being violated.

He maintained that the Army Act was designed to maintain discipline in the armed forces, adding that the military’s senior command had reached two conclusions in the press release issued on May 15.

“It was stated in the press release that military installations were attacked on May 9. The press release [also] said that there was irrefutable evidence of the attack. After drawing these conclusions, they themselves can’t be the judge of the matter,” he contended.

“Which civilians can be tried under the Army Act?” CJP Bandial asked. He also wondered about who would be defined as “civilians”, asking whether retired army officials would also fall in this category.

Lawyer Hussain said the Army Act was not made keeping civilians in mind.

Justice Shah then asked the lawyer whether trials of civilians were also conducted in other parts of the world. Hussain responded that every country had its own laws, adding that civilians could be tried in military courts in Britain.

“Can an officer follow fair trial in a military court after the decision of the senior leadership?” Hussain asked. “You can’t judge your own case,” he said, adding that the top court could issue an order on parts of the Army Act related to civilians.

He further said that Parliament did not have the power to legislate regarding the court martial of a civilian. “The court has to see whether court martial [of civilians] is legal or illegal,” he said, adding that military courts could only function when civil courts were unable to do so.

“Why does the government not have faith in civil courts?” he asked, saying that a large number of people were slated to be court-martialled if the current situation prevailed. Hussain said that the government had not clarified why it had expressed no confidence in civil courts.

“Military trials will result in many civilians facing court martial,” he said. He said that there was also no information about about the charges they would be tried under. “The government will tell us what the details are, and why the cases can’t be tried in ordinary courts,” Hussain said.

CJP Bandial pointed out that matter relating to national security fell under the purview of the army. [The court] does not want to get into the argument that a civilian can never be tried under the Army Act,“ he said.

“If a civilian carried out anti-state activities in collusion with an army official, it is a very serious matter. In such a situation, there can be no distinction between the two,” Justice Bandial said. He further said that the law for Kulbhushan was made after a decision by the International Court of Justice.

The pleas

The petitions in question were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan.

Khawaja, who filed the petition through his counsel Advocate Khawaja Ahmad Hosain earlier this week, requested the top court to declare the trial of civilians by military courts unconstitutional.

The former CJP pleaded that Section 2(1)(d)(i) and (ii) of the Pakistan Army Act were inconsistent with the fundamental rights conferred by the Constitution and therefore void, and should be struck down.

As an interim measure, all proceedings against civilians based on the sections should be suspended or, in the alternative, any military court should be restrained from passing a final order in any case against civilians based on the sections, the petition stated.

Before this petition, five members of civil society from different cities, thro­ugh their counsel Faisal Siddiqi, sought as illegal the trial of civilians in the military courts in connection with the violence in the country of May 9.

Likewise, Ahsan, who has also served as a former law minister and also spearheaded the 2007 lawyers’ movement, explained that the primary purpose of his petition was to ensure that none of the thousands of civilians who have admittedly been arrested for allegedly having partaken in the May 9 violence and being nominated for trial be tried by military courts.

The petitioner said he did not seek to scuttle the trial of any civilian before any lawfully established court of criminal jurisdiction.

In his petition, the PTI chairman sought a declaration against the arrests, investigation, and trial of civilians in peacetime under the Pakistan Army Act (PAA) 1952 as well as the Official Secrets Act 1923.