Civilians' military trial: Will trial begin afresh if cases shift to ATCs, asks SC

ISLAMABAD: The Supreme Court has adjourned for today (Tuesday) hearing into the intra-court appeals (ICAs) in the military courts case.

A seven-member Constitutional Bench of the apex court — headed by Justice Amin-ud-Din Khan — heard the federal government and defence ministry’s ICAs against its judgment, declaring the military trial of civilians as unconstitutional.

The other members of the bench were Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan.

Representing the civil societies, Faisal Siddiqui Advocate submitted that the major issue was not how 105 suspects had been selected for military trial but whether the law allowed their military trial.

Justice Amin observed that the transfer of suspects was a matter of record and asked the learned counsel if he had challenged Section 94 of the Army Act. Siddiqi replied that at the time of the suspects’ custody, their crimes had not yet been determined adding that the unlimited discretionary powers granted under Section 94 had also been challenged.

He submitted that the commanding officer, who initiated the process of handover of suspects under Section 94 of the Army Act had unlimited powers, unlike the prime minister, who had limited powers.

“There must be a structure for powers of handing over the accused persons,” Siddiqui contended. Justice Syed Hassan Azhar Rizvi asked the counsel if the police investigations were slower than the military trials.

He further asked Siddiqui whether sufficient evidence existed at the time of the suspects’ handover. Siddiqi replied that the presence or absence of evidence was not the issue, but rather the absolute authority in transferring suspects.

Justice Mandokhail asked the counsel whether the Special Anti-Terrorists Court (ATC) could reject a handover request. Siddiqui responded in the affirmative. Justice Amin, however, observed that such a defence on the suspects’ behalf could have been pursued before the ATC or in an appeal.

Justice Mazhar asked Siddiqui whether the court had decided on the commanding officer’s request without issuing notices to the suspects. Justice Jamal Khan Mandokhail observed that Section 94 applied only to those under the Army Act, and after the ATC’s decision, the suspects fell under the said law.

He remarked that the ATCs also had the authority to reject the commanding officer’s request. Siddiqui contended that the decision to conduct a court-martial was supposed to be made before the suspects’ custody.

“How a handover could occur without a prior court-martial decision”, Faisal Siddiqui questioned. Siddiqui replied in the negative when Justice Rizvi asked him if the request for custody by the commanding officer provided any reasons.

Justice Naeem Akhtar Afghan remarked that the reasons had been stated in the request, specifically citing the offences under the Official Secrets Act.

Justice Mandokhail observed that the procedure for registering a complaint under the Official Secrets Act was clearly mentioned in the Code of Criminal Procedure, which required a magistrate to record a statement and decide whether an investigation was necessary or not.

Siddiqui submitted that it was settled that only the federal government could lodge a complaint under the Official Secrets Act, adding that no person in a private capacity could file such a complaint.

The counsel further submitted that under the Official Secrets Act, complaints could be filed under the military rules as well.

Siddiqui contended that if the trials were declared null and void, the pending cases would be transferred to the Special Anti-Terrorism Court (ATC) adding that those cases where the sentences awarded were implemented, would be consider as past and closed transactions.

At this, Justice Muhammad Ali Mazhar asked the counsel where the trial would begin if the cases were transferred from the military courts to the anti-terrorism courts (ATCs).

“Whether it will commence fresh or will be based on the evidence recorded during the military trial,” Justice Mazhar asked the counsel. Similarly, Justice Amin asked the counsel whether a past and closed transaction agreement would validate military trials.

“Article 245 was not in effect on May 9 but had been implemented when the petitions were filed,” Justice Amin-ud-Din Khan added. Siddiqui, however, replied that the trial of civilians in military courts was challenged before the Supreme Court due to the application of Article 245. Later, the court adjourned the hearing for today (Tuesday).