The Supreme Court on Tuesday rejected the federal government’s request to constitute a full court bench to hear a set of pleas challenging the trial of civilians in the country’s military courts.

The development came as a six-judge larger bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and consisting Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A. Malik, resumed hearing the case.

“Judges are not available at this time. It is not possible to form a full court,” CJP Bandial told Attorney General for Pakistan (AGP) Mansoor Usman Awan.

On Monday, the federal government had taken a stand before the apex court and stated that the trial of those accused of violence against the armed forces under the Pakistan Army Act (PAA) 1952 was an “apt and proportionate response” under the constitutional framework and statutory regime.

The government urged the court to dismiss all the petitions, adding that under Article 245 of the Constitution, the armed forces have been charged with the obligation to defend Pakistan against external aggression or the threat of war.

“Therefore, to create deterrence in respect of such attacks, our constitutional framework allows perpetrators of such vandalism and violence to be tried under PAA,” it said.

It also pleaded that the case be heard by the full court consisting of all the judges, also reminding that one of the members of the bench, namely Justice Yahya Afridi, in his note had already urged the CJP to consider referring the matter to the full court.

Today’s hearing

At the outset of the hearing, Supreme Court Bar Association (SCBA) President Abid Zuberi came to the rostrum. He said that he had submitted a detailed response and was representing the SCBA, adding that he would assist the court on five points.

“It will be good to have your opinion,” CJP Bandial said.

Zuberi pointed out that the apex court had decided in the Liaqat Hussain case that civilians could not be tried in military courts. He cited the judgement by ex-CJP Justice Ajmal Mian and said that only military personnel could be tried under army laws.

“The judgement stated that a constitutional amendment is needed to try civilians under the Army Act,” he contended.

“The main point is, how will the suspects be connected with the crime in question,” he said. The SCBA president said that there were previous verdicts in this regard, saying that the courts had ruled that suspects could only be tried if they were directly linked with the crime.

“You are saying that a suspects’ link with the crime is the first requirement of the trial,” CJP Bandial said. “According to you, civilians can be tried in military courts only after they are directly linked to the crime and after constitutional amendment,” he said.

However, Justice Ahsan then pointed out that the Liaqat Hussain case was tried without introducing a constitutional amendment. He also asked if a constitutional amendment was needed if it concerned the army’s internal matters.

“Can you summarise your position?” the CJP asked. He also asked what would happen if the suspect was proven to be linked to the crime.

“In the current situation, a trial is only possible through a constitutional amendment,” Zuberi replied. He pointed out that the Official Secrets Act was invoked against some suspects involved in May 9 violence but not against the others.

He further said that the extent of prosecution by military trials was also not known, adding that trials were conducted by the members of the executive and not the judiciary.

He said that while the 21st Amendment had allowed for the establishment of military courts, it had also allowed for a judicial review in the high courts and SC.

“Are you saying that police should first take the accused to regular courts and have them charged before taking them to military courts?” justice Afridi asked.

Zuberi said that according to the law, a person was not a criminal until they were charged with the crime.

At one point, CJP Bandial said that the ruling in the Liaqat Hussain case stated that military authorities could investigate but not conduct the trial of civilians.

Justice Ahsan then asked who would decide when the Army Act was applicable and when it was not. Zuberi replied saying that the police was responsible for investigating and would decide as he wrapped up his arguments.

AGP Awan then commenced his arguments, saying that petitioner’s counsels had talked about the 21st Amendment, the Liaqat Hussain and Brigadier F.B. Ali cases. He pointed out that a full court had decided the petitions against the 21st Amendment and called for doing the same in this case.

Awan the proceeded to read out the note penned by Justice Afridi wherein he urged CJP Bandial to constitute a full court.

“In his note, Justice Afridi asked for a full court to be constituted. The objections of the other members of the bench were also included in the note,” he said.

Justice Ayesha then asked AGP Awan to also read the June 26 verdict, pointing out that the federal government had objected to one of the members of the bench. “Can the government now request for a full court?” she asked.

Awan then called for constituting a full court consisting of judges who were available.

At this, Justice Ayesha asked, “Who will decided which judges are available? You are accepting the fact that the chief justice will decide the formation of the bench.”

Justice Akhtar then said that the current bench had heard the case at hand to a “large extent” and urged the AGP to continue with his arguments.

Subsequently, the government’s request for constituting a full court bench was rejected and the hearing was adjourned till tomorrow.

The pleas

The petitions 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, 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.