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Tuesday April 16, 2024

Military courts case: SC directs to provide detainees 'all facilities'

Chief Justice hopes no one is 'tried' in military courts till final outcome of case, challenging civilians trail under army laws

By Maryam Nawaz
June 26, 2023
CJP Umar Ata Bandial (top) and (left to right) Justice Yahya Afridi, Justice Ayesha Malik, Justice Ijazul Ahsan, Justice Munib Akhtar, and Justice Mazahar Ali Naqvi. — Supreme Court website
CJP Umar Ata Bandial (top) and (left to right) Justice Yahya Afridi, Justice Ayesha Malik, Justice Ijazul Ahsan, Justice Munib Akhtar, and Justice Mazahar Ali Naqvi. — Supreme Court website

ISLAMABAD: The Supreme Court Monday directed authorities to provide "all facilities" to the suspects detained, and are set to be tried in military courts while also ordering to allow their families to meet them.

Chief Justice of Pakistan (CJP) Umar Ata Bandial made this remark during the third hearing of the petitions challenging the government's decision to try civilians in military courts.

Following the May 9 protests in which several government buildings and army installations were vandalised, the government announced that those involved in the incidents would be tried under military courts.

The bench hearing the pleas also comprises Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik, and Justice Mazahir Ali Naqvi, was hearing a set of petitions trials of civilians in military courts.

The petitions, separately filed by PTI Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and five civil society members including Piler Executive Director Karamat Ali, have requested the apex court to declare the military trials unconstitutional.

Bench dissolved for second time

At the start of the hearing today — the third since last week — AGP Awan took to the rostrum and said: "Justice Mansoor Ali Shah had asked earlier if we objected to his presence in the bench. At the time, I had said there was no objection to him."

The AGP submitted to the court that he had "been instructed [by the government] that Justice Mansoor Ali Shah should not be a part of the bench."

Justice Shah had previously informed the court that he was a relative of petitioner Khawaja and that if anyone had concerns about his inclusion on the bench, he would recuse himself.

At this, AGP Awan said he had no reservations about his inclusion in the bench.

Moreover, the AGP's request today prompted CJP Bandial to remark: "The bench will not be made by your will."

He then demanded to know on what basis the federal government has objected to Justice Mansoor.

The AGP responded that the objection had been raised due to a conflict of interest.

Irked with the AGP, the CJP asked: "Are you objecting to Justice Mansoor on bias or conflict of interest?"

The attorney general reiterated that the objection was based on a conflict of interest.

"You are a top-class lawyer and the court has confidence in you," the CJP said.

However, he pointed out that there was a link in the continuum of objections to judges.

"Earlier, the government raised the issue of bench ratio," CJP Bandial remarked.

"No one doubts the competence of the judge against whom the objection is being raised," the CJP responded, adding that this was not the first time the government had raised such objections.

"No one objected to the 90-day clause in the Punjab elections case; objections were raised only against the bench," he said.

"In the election case, instead of the constitutional matter of 90 days, an objection was raised on proportionality," he added.

He continued that the apex court had avoided taking strict action after the government failed to implement its election order.

"The Supreme Court is not using a stick, but in what capacity are others using the stick?" he asked.

"We avoided contempt of court proceedings in the election case. Now, we think it's time to take a step back." the CJP observed, adding that the "moral responsibility of right and truth belongs to this court".

CJP defends Justice Shah

"Former chief justice Khawaja is a dervish person; will Justice Mansoor benefit him?" he asked, asking, "Does the government want to make the bench controversial again?"

"Should [we] ask the prime minister why an objection was raised on the basis of a relationship?" he asked.

He further defended Justice Shah saying the latter was not the sort of person to let his relationship influence the decision.

"Do not tarnish the Supreme Court, do not ridicule it," he thundered, asking what message the government was trying to convey?

'Dark day in judicial history'

Terming the development a "dark day in judicial history", Advocate Latif Khosa, who is representing petitioner Atizaz Ahsan, said: "[They] don't let the courts make decisions, [yet they] mock its decisions."

Furthermore, Advocate Salman Akram Raja, who is representing Junaid Razzaq and was expected to present his arguments today, said: "It is a case of fundamental rights, there should have been no objections against the bench."

However, he added that Justice Shah should "review his decision".

At this, Justice Shah remarked: "I know my conduct well."

He added that he would "never be a part of the bench again", if anyone could "raise a finger" against him.

Moreover, the lawyer of the petitioner of Hamid Khan said, "There is no point of objection on this occasion."

Lawyer Faisal Siddiqui added, "Justice M Arkani had once shared a joke with his students. He said that if you start losing the case, object to the bench.

"This is what the federal government is doing now."

After the hearing reconvened with a six-member bench following the dissolution of the seven-member bench, the top judge asked the PTI lawyer to give arguments later.

"[We] are recovering from the setback that took place this morning. Instead of a constitutional debate, other tactics are being used," CJP Bandial said.

Lawyer representing petitioner Junaid Razzaq, Barrister Salman Akram Raja, started his arguments but the CJP Bandial asked him to amend his plea.

He objected to the arguments over citizens' rights when the trial had not even started.

'Keep the arguments simple'

The CJP warned the lawyer against involving in a "big controversy" and asked him to "keep the arguments simple".

"This is a fundamental rights case. Army Act's Section D2 cannot deprive the civilians of their basic rights [...] surpassing the Constitution," CJP Bandial remarked.

The top judge said that the court wanted to view the several verdicts about the military courts, while asking that the word "court martial" hadn't been used elsewhere than Army Act.

Meanwhile, Justice Akhtar stated that Article 199 does not apply to court martial.

At this, Barrister Raja informed the court that the article applied to the sentences awarded under the Army Act, while Article 2D of the Army Act does not apply to military officials and civilians on the basis of the allegation.

While objecting to Raja's arguments, the top judge said that it was "not right to say that a military court is equal to a session judge's court".

The CJP warned the lawyer against involving in a "big controversy" and asked him to "keep the arguments simple".

"This is a fundamental rights case. Army Act's Section D2 cannot deprive the civilians of their basic rights [...] surpassing the Constitution," CJP Bandial remarked.

The top judge said that the court wanted to view the several verdicts about the military courts, while asking that the word "court martial" hadn't been used elsewhere than Army Act.

Meanwhile, Justice Akhtar stated that Article 199 does not apply to court martial.

At this, Barrister Raja informed the court that the article applied to the sentences awarded under the Army Act, while Article 2D of the Army Act does not apply to military officials and civilians on the basis of the allegation.

While objecting to Raja's arguments, the top judge said that it was "not right to say that a military court is equal to a session judge's court".

Raja then read out the decision of the Supreme Court on the 21st Constitutional amendment.

"Army Act Section 2D has been challenged because a civilian cannot be tried under it he said.

He further submitted that after Arzam Razza, son of Junaid Razzaq, was arrested, he was not allowed to meet his father.

Adding that family members should be allowed to visit detainees, Raja appealed to the court to issue a stay order for the injuction.

'Don't express your political goals and desires in front of us'

Following Raja, PTI chairman's lawyer, Uzair Karamat Bhandari presented his arguments.

He said: "My client does not contend that those involved in the events of May 9 should be released.

[His stance is that] those involved in the events of May 9 should be tried according to the law."

He further added that "for some reason" his client's name was not allowed to be played on TV.

"PTI and the party chairman also filed petitions in the same case," adding, "I want to put forward the position of PTI."

However, the CHP cut him off, saying: "Don't express your political goals and desires in front of us."

At this, the PTI chief's lawyer submitted: "I adopt the arguments of Salman Akram Raja."

The CJP then directed him to complete his arguments tomorrow.

CJP seeks assurance

"Mr Attorney General, we need some assurances," CJP Bandial said, asking AGP Mansoor the status of military trials so far.

"The investigation is going on now. It is possible that many of the 102 people detained will be released during the investigation," the AGP responded.

In response to a query by Justice Mazhar, he responded that those who did not attack restricted areas would be released.

The CJP then remarked: "I hope no military trial will be conducted during the hearing of this case."

"It is being said that some people are completely missing; nothing is known about them," Justice Naqvi observed, to which the AGP replied that he could find out the whereabouts of anyone should the bench provide him a name.

The bench then rejected Salman Akram Raja's plea for a stay order and asked the AGP to provide complete details of 102 persons in military custody in the next hearing.

Adding that family members should be allowed to visit those who are in custody, the CJP instructed the AGP to ensure that all facilities are being provided to those arrested.

The case hearing was then adjourned till 9:30 tomorrow morning (Tuesday).