Attorney General for Pakistan (AGP) Mansoor Usman Awan told the Supreme Court (SC) on Tuesday that civilian’s trials in military courts had not yet started.

He made the remarks as a six-member bench, comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Sayyed Ma­­zahar Ali Akbar Naqvi and Justice Ayesha Malik, resumed hearing pleas challenging the trials of civilians in military courts.

A day before, Director General Inter-Services Public Relations (DG ISPR) Maj Gen Ahmed Sharif Chaudhry said in a press conference that military courts were indispensable to hold perpetrators and facilitators of the May 9 violence accountable, adding that 102 individuals were facing trials in these courts.

During yesterday’s Supreme Court hearing — during which Justice Mansoor Ali Shah left the bench after the government raised objections — CJP Bandial observed that he expected that no trial of any individuals, accused of committing violence on May 9, would commence in military courts while the apex court was hearing the matter.

In today’s hearing, the lawyers present asked the court to order a stay on trying civilians in military courts.

“No trial has started as yet and that also takes time. The accused will have time to hire lawyers first,” the AGP said, adding that copies of the investigation would also be provided before the trials commence.

He informed the court that the cases of detained civilians were at the investigation stage, a court order issued later in the day said, adding that the AGP explained that under the Pakistan Army Act Rules, 1954, after the completion of the investigation, accused persons were “provided copies of the prosecution evidence and granted time to examine the same and to engage counsel”.

That stage had not arrived yet, he said, adding, “Therefore, no military trial of any detained civilian has so far commenced.”

“However, if any development in this regard takes place he (AGP) will immediately inform the chief justice,” the order quoted him as saying.

The lawyers, however, told the AGP to make his statement part of the record as it “contradicted” the statement given by the army’s spokesperson a day earlier. The court subsequently rejected the request for issuing a stay order.

“Ensure the suspects speak to their families today,” Justice Bandial told the AGP. “Alert me immediately if something happens. I will be available from next week,” the CJP said.

“The AGP has assured the court that trials are not commencing forthwith. We are looking at this positively,” he said. The top judge that the hearing would resume after Eid and told the AGP to “take care” of those in custody. The hearing was then adjourned for an indefinite period.

According to the court order, the AGP has provided the court with a list of 102 civilians currently in military custody along with the details of stations where they are kept.

He said he would seek the instructions of the federal government on whether the list of 102 individuals in detention could be made public and would apprise the bench of its response today, the order stated.

The AGP further assured that neither of them was to be charged with the commission of any offence that attracted either capital punishment or a lengthy sentence, adding that “telephonic communication of the detained civilians with nominated members of their families shall be established today and a weekly visitation schedule for them shall be chalked out expeditiously”.

The order said the AGP also informed the court that no advocates or journalists were in military custody, adding that the federal government “shall render its assistance to trace and recover missing journalist Imran Riaz Khan”.

According to the order, the AGP told the bench he would be filing relevant documents and his written synopsis pertaining to the case at the next hearing.

The hearing

At the outset of the hearing, Supreme Court Bar Association (SCBA) president Abid Zuberi came to the stand and told the court that he had also filed a plea on the matter. He urged the court to let him present his arguments.

“We are happy to see that a plea has come from the SCBA,” the CJP remarked, adding that “good arguments” would be welcomed. Justice Bandial told Zuberi to prepare his arguments, adding that the court would come back to the plea later.

Subsequently, PTI chief Imran Khan’s lawyer Uzair Bhandari resumed his arguments in the case and said that a civilian could not be court-martialled. Referring to yesterday’s press conference by the military, he said that ISPR Director General spokesperson Maj Gen Ahmed Sharif Chau­dhry stated that 102 people would be tried in military courts.

However, Attorney-General for Pakistan (AGP) Mansoor Usman Awan interjected and said, “I stand by what I said yesterday, that 102 people are not being tried.”

During yesterday’s hearing, the AGP had stated that the cases of 102 detained persons were at the investigation stage and it was likely that the number could reduce as their cases could be sent to normal courts after the probe was completed.

During today’s hearing, AGP Awan said that the representatives of the Ministry of Defence were also present, who would support his stance.

“We believe you,” CJP Bandial told the AGP.

“We need to make it clear whether the accused were taken into custody under Section 2(d)(i) of the Official Secrets Act or Section 2(d)(ii),” Justice Afridi said.

“Initially, they were detained under Section 2(d)(ii) but the consequences of Section 2(d)(i) may also be applicable,” AGP Awan told the court.

“What is interesting is that the allegations against the suspects are not related to the Official Secrets Act,” CJP Bandial remarked. Justice Ayesha also inquired about the criteria for deciding which court suspects would be tried in.

“In the Liaquat Hussain case, it was made clear that not every case can be tried in military courts, rather it needs to be proven that the case is linked to the Army Act,” the CJP said.

Lawyer Bhandari also argued that Parliament could not approve civilian trials in military courts without carrying out a constitutional amendment. He said that the 21st Amendment had laid down the principle that trial of civilians required a constitutional amendment.

“If there is an aspect of internal matters, then also a civilian trial in military courts can’t be held?” Justice Ayesha asked. Justice Afridi remarked that such matters, which related to the country’s defence, had been decided in the 21st Amendment.

“The situation is clear after yesterday’s ISPR press conference,” Justice Afridi observed.

Meanwhile, Justice Ahsan said that the court could not ignore past examples of civilians being tried in military courts. At the same time, he said that past examples had different realities and different reasons.

Bhandari contended that any military trial of a civilian could only happen through a constitutional amendment.

Justice Akhtar, however, stated that a military trial could take place during an emergency or during war time. “Civilian trials cannot be conducted in military courts when fundamental rights are not suspended,” he said.

The PTI’s chief’s lawyer replied that the 21st Amendment stated that military trials could only happen when there was a war-like situation.

“Our Constitution, laws and fundamental rights have evolved over the years. The Constitution now includes Article 10-A [right to fair trial] which must be looked into,” Bhandari said.

He went on to say that Article 175(3), which mandates the complete separation of the judiciary from the executive, talked about judicial structures while Articles 9 and 10 talked about fundamental rights. “All these articles may be separate, but they are connected,” he argued.

Bhandari contended that fundamental rights required a judge appointed under Article 175(3) to conduct the trial. “Court-martialling a civilian does not leave a good impression on the judicial system and no one has allowed it happily,” he added, adding that civilians’ military trials would cause unease in the country.

He further said that the first information reports (FIRs) against the suspects did not mention the Official Secrets Act. “The army is involved in various things, including sports. If something happens there, then will be Army Act be invoked?” he asked.

“When you talk about an army man, then the most important thing is morale. If morale is affected then it benefits the enemy. Lowering their morale is also a crime,” CJP Bandial said. The top judge observed that army officials were ready to render sacrifices for the country due to their high morale.

Justice Ahsan added that the Official Secrets Act could only be invoked when the act had benefitted the enemy.

Justice Ayesha observed that for a trial under the Army Act, the alleged offence had to fall under the Official Secrets Act. She then asked the lawyer to inform the court about the Official Secrets Act.

Bhandari said that under the act, attacking an area that was off limits or carrying out an act that would benefit that enemy was a crime.

Justice Ayesha then said that an area that was off limits had either war plans or sensitive installations.

The hearing was then adjourned for a short break. When it resumed, Justice Naqvi wondered whether bail could be granted in cases under the Official Secrets Act.

“Yes, bail can be granted,” Bhandari said, but he reiterated that the Official Secrets Act was not mentioned in the FIRs. He said that after making an amendment, the act was paired with Protection of Pakistan Act to include anti-terrorism provisions.

Referring to the case against poet Ahmad Faraz, Bhandari said the judge had observed that Faraz could not be tried in a military court because he had not been formally charged.

“How can army authorities arrest someone without them being charged?” CJP Bandial asked. “How can accusations be made without any evidence? This matter is beyond comprehension,” CJP Bandial said.

Justice Akhtar also inquired how the investigation would take place under the Army Act and how charges would be formed against the suspects.

“This is exactly what I am saying. The Army Act is incomplete in this regard,” the lawyer replied.

At one point, Justice Ahsan noted that there were no charges against the suspects at the moment. However, Bhandari pointed out that first information reports against the suspects were lodged under the anti-terrorism laws while trials were being conducted under the Army Act.

“It is beyond my understanding how the army can arrest someone when there is no evidence,” CJP Bandial observed. Justice Akhtar added that a magistrate could also not take action against the accused until a police report was submitted.

“Taking action against anyone without any evidence is ridiculous,” the CJP said.

Bandhari further contended that the arrests by army officers were unlawful. At that, the CJP remarked, “Accusing a person without evidence is useless.”

Justice Ahsan also noted that the cases against the suspects were registered under the Pakistan Penal Code. “It is understandable that the suspects are first arrested and then investigated,” Justice Akhtar remarked.

Bhandari further said that in his client’s opinion, the decision to try civilians in military courts was based on ill intent. He also noted that some voices were speaking against military trials of civilians. Wrapping up his arguments, he urged the court to conduct an open trial.

When AGP Awan came to the rostrum, he said that he would submit written arguments about the trials in military courts. He contended that the charges against the accused were provided when seeking their custody.

He said that after the events of May 9, 15 days passed before the process for the handing over of suspects was initiated. Here, the CJP asked the AGP about the process of charging a suspect under the Army Act.

AGP Awan reiterated that 102 persons were in the army’s custody. He assured the court that the detained persons would be allowed to speak to their family members on the phone. He also said that the suspects would be granted permission to meet their parents, spouses, children and siblings once a week.

Here, the CJP recalled that he had visited some jails where the inmates were allowed to speak with their families on phones.

At one point, Justice Ayesha asked why the identities of the 102 suspects were being kept hidden. “Can we make the list of these people public?” she asked.

The attorney general refused, saying that they were still under investigation.

At one point, Justice Afridi asked the AGP to ensure the suspects would be allowed to talk to their families. The CJP added that all the suspects should be able to talk to their family members on Eidul Azha.

The AGP added that he would inform the bench in chambers regarding making the list of detained persons public. He assured the court that all those in custody were also being provided health facilities, adding that doctors were also present.

The AGP also said that no lawyers had been taken into custody, adding that he was aware that one journalist was missing.

“You are talking about Imran Riaz,” the CJP said. The AGP replied that he was not in the government’s custody and efforts were being made to recover him. Justice Bandial then told Awan to ensure that Riaz was found.

The CJP asked asked Awan about whether the death penalty was an issue in the cases. “The death penalty can be given in case of foreign contacts,” Awan responded.

The lawyers present during the hearing asked the court to order a stay on trying civilians in military courts. “No trial has started as yet and that also takes time. The suspects will have time to hire lawyers first,” the AGP said.

“Ensure the suspects speak to their families today,” Justice Bandial told the AGP. He said that the hearing would resume after Eid and told the AGP to “take care” of those in custody.

When AGP Awan came to the rostrum, he said that he would submit written arguments about the trials in military courts. He contended that the charges against the accused were provided when seeking their custody.

He said that after the events of May 9, 15 days passed before the process for the handing over of suspects was initiated. Here, the CJP asked the AGP about the process of charging a suspect under the Army Act.

AGP Awan reiterated that 102 persons were in the army’s custody. He assured the court that the detained persons would be allowed to speak to their family members on the phone. He also said that the suspects would be granted permission to meet their parents, spouses, children and siblings once a week.

Here, the CJP recalled that he had visited some jails where the inmates were allowed to speak with their families on phones.

At one point, Justice Ayesha asked why the identities of the 102 suspects were being kept hidden. “Can we make the list of these people public?” she asked.

The attorney general refused, saying that they were still under investigation.

At one point, Justice Afridi asked the AGP to ensure the suspects would be allowed to talk to their families. The CJP added that all the suspects should be able to talk to their family members on Eidul Azha.

The AGP added that he would inform the bench in chambers regarding making the list of detained persons public. He assured the court that all those in custody were also being provided health facilities, adding that doctors were also present.

The AGP also said that no lawyers had been taken into custody, adding that he was aware that one journalist was missing.

“You are talking about Imran Riaz,” the CJP said. The AGP replied that he was not in the government’s custody and efforts were being made to recover him. Justice Bandial then told Awan to make efforts for locating the missing anchorperson so that “he could spend Eid with his family”.

The CJP asked asked Awan about whether the death penalty was an issue in the cases. “A death penalty can be given in case of foreign contacts,” Awan responded.

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