Civilians’ trial in military courts: SC directs AGP to get instructions from govt on right of appeal

ISLAMABAD: The Supreme Court has directed the Attorney General for Pakistan (AGP) to get instructions from the federal government by Friday (July 21) regarding the right of appeal to the civilians for their trial before the military courts.

A six-member bench, headed by Chief Justice Umar Ata Bandial, and comprising Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik, on Wednesday, heard the petitions against the trial

of civilians by the military courts.

The chief justice said for the first time in Pakistan not only the military but also the civilian installations/properties were damaged massively, but there is also a constitutional framework. He inquired how due process guaranteed in Liaquat Hussain and Mehram Ali cases will be ensured.

Regarding the recording of evidence, the attorney general said the summary of evidence under Rule 13 of the Army Act akin to challan submitted in the ordinary courts.

He said there should be reasoned judgments, supported by the evidence.

He said if the Court directs then there will be reasons in the judgments and right of appeal. He informed there is a right of appeal before the army officer of Major-General level.

Justice Afridi asked the AGP “Why doesn’t the government legislate”? “Why is the government asking the Court to provide the appeal in the trial of civilians before military courts”, he further asked. Justice Munib questioned would it not be legislative competence of the Parliament to provide the right of appeal for the trial before the Court Martial.

He said the law (Army Act) was designed for a specific class of persons.

Justice Ayesha Malik questioned will the right of appeal satisfy if the element of due process is missing, adding give them access to the courts, and asked where these persons have been kept.

She further questioned will there be due process at every stage.

Justice Bandial said it was an attack on the state institutions. In my memory don’t recall such an attack not only on the army but also the civilian installations/properties. However, the Court will not allow unconstitutional act. Justice Naqvi said here is the issue of citizens’ liberty.

The CJP observed that Indian spy Kulbhushan Jadhav was given the right of appeal, to which, the AGP said that the “alien” was given the right through legislation.

The bench observed that the provisions of law under which the protesters are charged with, carry maximum punishment is two years, while the incident involves more serious offences. None of the petitioners’ counsel has argued that the protesters of 9th May go scot-free, he added.

Justice Munib asked the attorney general whether the government thinks Section 3 of the Official Secrets Act will not apply.

He said under that section even entering the prohibited areas is an offence. “I would have thought that Section 3 will apply”.

Are you (the government) not charging them (the protesters) under this provision, in light of the photographs that you have shown us (the judges). The seriousness of offences is grave, Justice Munib remarked.

The AGP replied that Section 3 of the Act could be attached, adding; “I will take instruction and come back.”

The chief justice said if they (the protesters) go in Section 3 of the Official Secrets Act then the punishment is harsher if they do not have appeal.

He questioned is there any bar that the appeal cannot be granted by the court, adding the remedy (appeal) is provided in Rawalpindi District Bar Association (RDBA) case. If the SC can allow appeal on the basis of three principles set out in the RDBA judgment, then why cannot the Court direct for the appeal on the merit of the case.

At the outset of the proceeding, AGP Mansoor Usman Awan briefed the bench about the attacks on military and civilian installations and properties. He, through photographs, explained the gravity of the attacks, where the buildings were damaged and destroyed as the protesters had used petrol bombs as well. He said: “The purpose of showing photographs was that it was not just one incident on May 9, 2023, but it happened in a coordinate manner during a certain timeframe (03:00 pm to 05:30 pm) across the country.”

He explained that the country has faced terrorist incidents from internal and external forces, but such destruction was never witnessed.

The populous choose to ransack and damage properties. Corps Commander House was destroyed completely and the vehicles parked there were also damaged. The violent incidents of May 9 had caused losses of Rs2.5 billion, including Rs1.9bn to military installations, he added.

The attorney general once again requested the chief justice that the petitions be heard by a Full Court, as the 9th May incident is the first of its kind in Pakistan’s history.

He said earlier the civilians were tried under Army Act through the promulgation of Ordinance and in the RDBA case the civilians were though allowed to be tried by

military court but were given protection.

Justice Naqvi said that was entirely different circumstance, adding the civilians trial was allowed through a constitutional amendment.

The persons that are civilians can be tried under Army Act, but the question arises how the military courts fit in Article 175(1) of the constitution.

The case is adjourned until Thursday (July 20).

Copyright Business Recorder, 2023