On Friday, Chief Justice of Pakistan (CJP) Umar Ata Bandial said the Pakistan Army Act applied to civilians. 

There are seven members of the bench hearing petitions against military trials: CJP Bandial, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik, and Justice Mazahir Ali Naqvi. 

Citing Justice Shah, the CJP stated that national security matters directly affect the army.

‘Provoking a serving army officer for conspiracy against national security is a serious crime,’ CJP said, adding that the Army Act clauses do not have to be reviewed.

There is a difference between inciting the army for treason and suing a civilian for inciting the army for treason. A civilian can be tried in the military court if he incites the army for treason.”

The method used to bring civilians under the jurisdiction of military courts, and the basis on which the anti-terrorism court (ATC) sent cases to military courts, needs to be examined.

Following the arrest of their party chief, protesters belonging to Pakistan Tehreek-e-Insaf (PTI) vandalized army installations, prompting the government to decide to prosecute civilians under military laws.

Five civil society members, including Piler Executive Director Karamat Ali, PTI Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and former chief justice Jawwad S Khawaja, have filed separate petitions asking the Supreme Court to declare the military trials unconstitutional.

There is a different petition

A written statement was submitted by petitioner Karamat Ali’s lawyer, Faisal Siddiqui, at the beginning of the hearing.

“My petition is different from others in that I have not contested the Army Act and I do not contend that civilians cannot be tried in military courts,” the attorney explained.

According to him, civilians had also been tried in military courts earlier.

As a result, Justice Shah asked him why he hadn’t challenged the Army Act earlier.

It is unconstitutional and wrong for “favoured persons” or specific civilians to be tried under military laws.

In 1998, a verdict against military courts did not challenge the Army Act, the counsel said, adding that he did not say any clause of the act was illegal.

During this time, Justice Ayesha enquired about the principles that had been adopted in other cases regarding the Army Act, and how civilians were being tried under that act.

In the meantime, Justice Shah observed that trials relating to national security are conducted under the Army Act and the Official Secrets Act.

In the event that the Army Act had not been challenged, the judge told the lawyer to make arguments on the law.

As reported in the report

Reports indicate that 81 women were detained following the mayhem on May 9. The remaining 39 are on judicial remand, with 42 of them being released on bail.

As a result of the arrest of the PTI chief, 3,050 suspects had been found involved in vandalism incidents, and 2,258 detention orders had been issued. There are only 21 in jail at the moment.

As a result of the 51 Anti-Terrorism Act (ATA) cases registered on May 9, 1888 people were arrested. A total of 1888 people are in custody, with 108 on physical remand and 1247 in judicial custody.

The identification parade of 33 suspects was also conducted, while 232 were released on bail. A simultaneous declaration of innocence and release of 500 people was made.

The report states that 247 cases were registered under laws other than the ATA. 4119 people were arrested in these cases, including 86 accused on physical remand and 2,464 in judicial custody.

Furthermore, the identification parade for 368 suspects was conducted, and 1201 were acquitted. According to the report, 3,012 individuals were released on bail.

There were no provisions of the Official Secrets Act in the Punjab government’s report, Justice Naqvi said.

It is unclear when the provisions of the Official Secrets or Army Act were added to the cases, and whether a commanding officer can request the handover of suspects without provisions of the Official Secrets Act.

Justice Shah questioned the army’s reasoning for concluding these suspects committed the crime, and Justice Ayesha asked whether the case could be registered under the Army Act or Official Secret Act.

At this point, Siddiqui stressed the point that civilians can’t be taken into custody by the army.

Civilians can be taken into custody by the Army through the ATC: CJP

According to CJP Bandial, the army can request anti-terrorism courts to get civilians under military law into custody for trial. 

“It is common sense that crimes under the Official Secrets Act are to be determined by the army itself and that it can request anti-terrorism courts to take civilians into custody for jury trials under army law,” the chief justice remarked.

Nevertheless, he noted that there was no solid reasoning provided by the military. It will be a question for Attorney General Mansoor Usman Awan.”

An adjournment for 15 minutes followed this point.

During the hearing, lawyer Siddiqi said a civilian cannot go to military court.

“Civilian trials are conducted in civil courts or can be moved to military courts under extremely exceptional circumstances,” he explained.

In addition, he suggested a thorough investigation should take place before charging the civilians. According to him, the May 9 suspects can be tried in other courts.

The lawyer was then asked by Justice Ayesha why civilians could be tried in military courts under “extraordinary circumstances”. Also, she wondered if military courts can try civilians under the Official Secrets Act.

In this case, Justice Ayesha asked whether the civilians’ crimes violated the Official Secrets Act.

In response, Siddiqi informed the court that the offence defined in the Anti-Terrorism Act (ATA) is different.

It is possible for the federal government to resolve the controversy over military courts

The federal government could resolve the dispute between military and civil courts, Justice Ahsan remarked.

“The ATA applies in the case of attacks on vital installations”, Ali’s lawyer concluded.

It was then that ex-CJP S Khawaja’s lawyer started his arguments.

He explained that the Army Act was intended to maintain discipline in the military.

According to the lawyer, the court should form a larger bench because the case was significant and would set an example.

Khawaja’s lawyer declared that court-martials for civilians are unconstitutional when civil courts are in operation.

Neither his plea supported any political party nor any attack on a military installation, he said. As a matter of fact, it was about basic human rights.

When military courts are used to try cases, what rights of the Constitution would be violated?

It was at this point that the lawyer stated that Articles 9, 10 and 25 would be affected.

According to him, a seven-member bench was not prevented from quashes Section 2D-1 of the Army Act by the verdict of the 21st constitutional amendment.

A larger bench can be formed if the court considers its hands tied by the verdict under the 21st amendment.

It was at this point that Justice Ahsan remarked that the court had stated in the 21st Amendment verdict that military courts were for certain situations.

A term such as ‘war conditions’ was used in the verdict, he said.

As a result, the hearing was adjourned until 1:30pm.