Attorney General for Pakistan (AGP) Mansoor Usman Awan on Friday urged the Supreme Court to set aside hearings into petitions against the trial of civilians in military courts for a month to allow for deliberation on granting the right of appeal.
“This matter needs very careful consideration,” he argued. “It has to be done in such a way that the country’s position at the global level is not affected,” he said, referring to the case of Indian spy Kulbhushan Yadav and noting a blanket assertion could also benefit convicted spies. He then sought a month from the apex court, with the court adjourning proceedings indefinitely without outright accepting his request.
Today’s proceedings
The petitions against trials of civilians in military courts is being conducted by a six-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, and Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha Malik. During today’s proceedings, the AGP reiterated the need for military courts while assuring the bench arrests were undertaken only after a thorough investigation.
Arguing that the Army Act was operational on anyone accused of breaking discipline, he said he wanted to brief the court on amendments to the Army Act. Before he could commence, Justice Akhtar questioned if injuring an Army officer amounted to preventing them from performing their duty. He also questioned if the AGP was suggesting that human rights were not applicable in this particular law.
“After the 21st constitutional amendment, the law of trial in military courts of civilians came into force,” said the AGP, confirming to the CJP that trials of civilians became part of law after the amendment.
Justice Akhtar then inquired of the AGP if Parliament could include “basic human rights” in the Army Act. “Parliament has full power to legislate,” said the AGP. To this, the judge said it could not be that today’s Parliament included fundamental rights in the military act while the next one removed them. Additionally, Justice Ahsan remarked that the 21st amendment was made to apply the Army Act to civilians.
The AGP then proceeded to tell the court about the procedure of military trials. He said a first incident report was presented in military courts after which the commanding officer conducted a thorough investigation of the incident in a Court of Inquiry. Following this investigation, civilians could be arrested under Sections 73 and 76 of the Army Act, he said.
During the recording of the summary of evidence, the accused is given the right to cross-examine, and after that, a charge is framed under Rule 19 of the Army Act, he said. A panel of three officers sits to conduct a military trial, he explained, adding accused are given full right to cross-examine all the evidence and witnesses.
“During a military trial, the accused are given the right to have a lawyer,” he said, adding the accused could appoint an officer of the legal branch of the Army or a private lawyer. “In military courts’ trial, the accused is given the option of confessing or denying the crime,” he said, adding a regular Army trial only began after someone denied a crime.
In military courts, he said, an officer was appointed as the presiding judge to independently review the proceedings. The decision of the majority of the three trial officers in military courts is considered final, he said, adding an accused could appeal against the death sentence in the Courts of Appeal.
“During the trial in military courts, the accused may consult a legal adviser,” he added.
He further assured the court that the government had decided to have an open trial of the accused in military courts. “The accused’s lawyer and family members can see the full trial,” he said, reiterating that no trials related to the May 9 riots had as yet begun and the process was still in the investigation phase.
At one point, the CJP remarked that the accused were given “very little time” to defend themselves in military courts, which the AGP contradicted. He said for any punished over three months, an appeal could be sought within 42 days.
The CJP also directed the AGP to ensure military trials of people involved in the May 9 riots should not begin without informing the apex court. Earlier, Latif Khosa, representing petitioner Aitzaz Ahsan, claimed the situation in the country was comparable to the rule of former military dictator Ziaul Haq.
“You can’t compare the present era with the era of Ziaul Haq,” the CJP censured him. “This is not Ziaul Haq’s era nor is martial law imposed in the country. Even if a martial law-like situation arises, we will intervene,” he added.
The court is hearing a set of petitions filed by former CJP Jawwad S. Khawaja, lawyer Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan. While Khawaja has urged the apex court to declare the trial of civilians by military courts unconstitutional, other petitioners had argued that the Army Act did not apply in the present case. In earlier proceedings, the SC had rejected pleas to stay ongoing proceedings against civilians in military courts.