ISLAMABAD: Chief Justice for Pakistan Umar Ata Bandial expected that trial of persons held in army custody will not commence as the apex court’s proceedings are in progress.
A seven-judge bench, headed by the chief justice, and comprising Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik, on Monday, resumed the hearing on the petitions against the trials of civilians under the Army Act, 1952.
At the onset of the proceeding, Attorney General for Pakistan objected to Justice Mansoor’s inclusion in the bench, citing the fact that one of the petitioners, Jawwad S Khawaja, was related to him. The judge subsequently recused from the bench. After that, a six-judge bench minus Justice Mansoor heard the case.
102 people in army’s custody, AGP tells SC
At the end of the hearing, the chief justice inquired from AGP Mansoor Usman Awan that the government might have to give some sort of assurance. What is the progress on the military courts’ trial?
The attorney general said 102 persons are in army custody, but during the investigation the number may reduce. Some persons not needed their cases will be sent to the criminal courts.
The chief justice said the family members should be allowed to meet their dear ones, who are in army custody. “They are not on police remand and they should be allowed to meet their families,” he added. The CJP asked the attorney general to find out the whereabouts of their families and arrange meeting. They (the accused) should be allowed to have food and the reading material provided by their families.
Justice Mazahar inquired what the rationale is behind the pick and chose, adding a hundred people are in army custody. Mansoor Awan replied that those who had breached the parameters, who entered the premises and prohibited areas, will remain in military custody. They shall be tried under Army Act as they have targeted and damaged army installation on May 9.
The AGP also said that a trial before military courts is yet to start as the investigation is still ongoing. Subsequently, the apex court asked the attorney general to submit complete details of the 102 individuals by tomorrow (Tuesday).
Justice Ayesha asked the AGP if he saying this on his own or on instruction, as the facts and figures are not before the Court. The attorney general sought time till tomorrow to get instruction. Uzair Bhandari, appearing on behalf of Pakistan Tehreek-e-Insaf (PTI) chairman, requested the SC’s bench for the formation of an independent judicial commission to probe the May 9 incidents. However, the CJP ignored his plea by saying, “These are political goals and inspiration”.
He earlier argued that whosoever is guilty of May 9 incident not be let off, but their trial must be held in accordance with the law. It is his (Imran’s) position that the trial of civilians by military courts is malafide.
Army, the National Security Council are speaking the same language and the National Assembly had passed the resolution demanding that persons involved in May 9 incident need to be tried by the military courts.
The chief justice observed; “Court doesn’t have a stick, only rely on moral authority.” He then asked, “In this country many have sticks but do they have moral authority?”
Salman Akram Raja, representing a lawyer Junaid Razaq, whose son is in army custody, said that they wanted to know who are those 102 persons in army custody, as many persons in the aftermath of May 9 incident are missing and the families do not know the whereabouts of their loved ones. First, the fundamental rights of these persons must be ensured and the trial commence.
He argued how the accusation was made the basis for the trial of his client’s son by military courts. He asked how the accusation will create jurisdiction for civilians’ trials under Army Act. Accusation loses persons in army custody’s fundamental rights.
Raja further contended that the commanding officer decided that his client’s case will go into that category (trial under military court). How it will be assured that everybody accused of the May 9 incident will not be tried in the military courts. Where is the basis to ensure that such discretion will not come into play?
At the outset, the AGP asked Justice Mansoor to recuse from the bench as he is a relative of the petitioner (ex-CJP Jawwad S Khawaja).
The chief justice; however, said: “The bench will not be made according to your whims.” Expressing his anger, the CJP said that the government “should not mock the judiciary”. He asked on what basis the government was objecting to Justice Shah’s presence on the bench. “Are you objecting to the conflict of interest or bias?” he asked.
He said; “We have always shown restraint. We didn’t punish those flouting court’s directives,” adding implementing the court’s directives was a “moral responsibility”. He said the ex-CJP Khawaja was not a political person.
Regarding the suo moto on Punjab elections, the CJP said there was a discussion about whether the majority or the minority verdict stood. “You are making the bench controversial again,” he told the AGP.
The attorney general said that personally, he had no objections to Justice Mansoor’s presence on the bench. The petitioners’ counsels urged Justice Mansoor to reconsider, saying that the case pertains to fundamental rights. However, Justice Mansoor said; “Try and understand, this is a judge’s own decision. I cannot hear this case.” He then recused and a six-member bench was constituted.
As the bench resumed hearing, Hamid Khan, the main counsel of the PTI chief told the chief justice that a number had not been assigned to their plea. However, the CJP said the court would come to this issue later, adding that the judges had come back after recovering from a “setback”.
“Instead of arguments, other tactics are being used here,” Justice Bandial said. He noted that the plea filed by the PTI chief raised several requests but Khan told the court that he would only focus on the one against military trials.
During the proceeding, Justice Ayesha questioned; “How can we say that military courts are not courts?”
“Can the verdicts of military courts not be challenged,” CJP Bandial asked. Raja said that they could be challenged before the army chief or a committee formed by him. “You can say that the scope of appeal in these courts should be expanded,” the CJP remarked.
Justice Naqvi noted, “You are saying that military courts are a parallel system and can’t be called courts.” Raja replied in the affirmative, highlighting that civilians were not dispensed basic rights during military trials.
“According to the Army Act, trials are conducted in military court on disciplinary violations. But the trial of a civilian in military courts is not a matter of disciplinary violations,” he contended. “This is a good point,” the chief justice observed.
At one point during the hearing, the CJP asked what the US laws said about civilians who rebelled against the state. “In America, the trials of citizens who indulge in anti-state activities are conducted in civilian courts,” Raja replied. The case was adjourned until today (Tuesday).
Copyright Business Recorder, 2023
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