August 4, 2023
ISLAMABAD – Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday said the armed forces would not be allowed to take “unconstitutional steps” as a six-judge bench indefinitely adjourned the hearing on a set of petitions challenging the trials of civilians in military courts.
The bench, headed by the top judge, comprised Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A. Malik.
A day earlier, the apex court had rejected a plea, filed by senior counsel Faisal Siddiqi on behalf of civil society activists, to constitute a full court for the case.
During today’s hearing, the CJP expressed regret and grief over the events of May 9 and stressed that he didn’t want the “army to raise their weapons against the people of Pakistan”.
He said armed forces should be praised for not opening fire on civilians despite the violence on May 9, recalling that people in Mianwali had broken into and attacked army installations. “However, the military will not be allowed to take any illegal steps,” he noted.
Justice Bandial further said the court was of the opinion that there was a further need to hear Attorney General for Pakistan (AGP) Mansoor Usman Awan’s arguments but contended that the court would not be able to do so for at least two weeks due to the unavailability of judges.
“AGP sahib, no military trials of civilians will be conducted,” he told Awan, to which the latter responded in the affirmative and added that assurances were given over the same.
Subsequently, CJP Bandial said the Supreme Court’s (SC) order on the provision of facilities to the suspects in custody will still remain applicable.
“It would have been great if everyone abided by the law and Constitution,” the chief justice stated. “We respect those who cooperate with the court, and also those who do not cooperate with us,” he added.
‘Fundamental rights can’t be left to discretion of legislature’
During the proceeding, the AGP said the suspects were charged under Section 2-D(1) of the Official Secrets Act.
Here, Justice Akhtar said the trial of civilians in a military court was equivalent to having a parallel judicial system.
Meanwhile, Justice Afridi asked the AGP about his opinion on Article 175 and Article 175(3) of the Constitution, which refer to the establishment and jurisdiction of courts.
“Court martial doesn’t fall under the jurisdiction of Article 175,” Awan replied, to which Justice Ayesha asked if there was any other provision in the Constitution on the basis of which the AGP was arguing.
“I am noting your questions,” Awan replied. However, Justice Ayesha asked if the former was deviating from her questions.
Justice Akhtar maintained that fundamental rights could not be left to the “discretion of the legislature”.
“It cannot be that House includes some offences in the Army Act while the other removes or adds others offences,” he asserted.
“The concept of fundamental human rights is such that the state cannot take them back even if it wants to,” Justice Akhtar pointed out, adding that fundamental rights had been guaranteed by the Constitution.
Justice Ayesha also said here that access to justice was a part of fundamental human rights. “If military courts are not courts of law, then trials in them are tantamount to the denial of fundamental rights,” she added.
For his part, AGP Awan said military courts were similar to tribunals that dealt with people associated with the armed forces and defence institutions. “Court martial doesn’t come under the courts formed under Article 175, hence, it doesn’t have a right to appeal,” he added.
Justice Bandial said, “We are reviewing the constitutionality of trials of civilians for offences under the Army Act.”
“We are now moving towards the constitutional procedure; how a case goes into military courts,” the top judge said.
Continuing his arguments, the AGP said that if a civilian committed a crime which was related to the armed forces, they could be tried in military courts.
“But it is clearly written in the law and Constitution that this law is applicable to those persons who war with the armed forces,” the CJP pointed out.
At this, the AGP read a 2015 SC judgement out loud in court, highlighting that the verdict also mentioned attacks on military installations.
“A parallel judicial system has been created for such people,” Justice Akhtar stated here. “Exclusive jurisdiction was given to military courts so that no one could say why anti-terrorism courts are not conducting trials.”
Meanwhile, Justice Afridi said his understanding of the AGP’s argument was that military courts didn’t fall under the category of courts.
“Are you saying that the Constitution had to be amended in the past because the suspects were not related to the armed forces?” the CJP then asked. “You are now saying that constitutional amendments are not needed because there is a connection between the suspects and the military.
“This is a good explanation that you have given,” the top judge added.
Justice Bandial remarked, “You want to make fundamental rights of people rigid through military courts.” He added that if a trial was to be conducted over “connection with armed forces”, the court had to see its standard.
He further stated that a hearing on the case could not be held tomorrow (Friday) due to the unavailability of a judge while some members of the bench had to soon go on vacation.
“We are working [on the case] since June and need to prepare a plan of action,” CJP Bandial stressed, adding that the trials of civilians in military courts were “not a parallel judicial system”.
“We were told by Aitzaz Ahsan sahib that the Parliament is in a hurry,” he said and asked the AGP about his view on the matter.
Awan replied that he would need 2.5 hours more for his arguments and contended that military courts were essential for action against anti-state elements and terrorists. “We have already taken the court into confidence regarding our decision.”
“There is no attempt to overturn the Constitution or the law,” he assured. Awan said the events that took place on May 9 were in front of everyone and recalled that the army, despite attacks on its installations, did not open fire on any civilian.
Justice Naqvi asked why the military didn’t open fire, to which the AGP replied that “we don’t want a situation in future where they [the military] is forced to do this”.
“This is why we are conducting a trial and also giving assurances,” he added.
However, former minister and lawyer Aitzaz Ahsan contended here that the government’s tenure was expiring on August 12 and raised questions on the credibility of its assurances to the court.
He also requested the court to conduct a hearing on Sunday and take a decision on the case. “Time is passing by very quickly and everyone can feel the tick-tock,” Ahsan lamented, suggesting that the SC had an important responsibility on its shoulders and urged it to cancel the judges’ vacations.
However, the CJP said every member of the current bench had the right to take their time, adding that some judges needed vacations over health concerns.
SC urged to take suo motu on bill to amend Secrets Act
At the outset of the hearing, former minister Barrister Aitzaz Ahsan, one of the petitioners in the case, came to the rostrum.
“I want to read out four lines in court,” he said. “A new law has been approved in the Parliament, which gives intelligence agencies powers to search anyone at any time without a warrant.”
Earlier this week, the outgoing government quietly got the Official Secrets (Amendment) Bill, 2023 to amend the century-old secrets act approved by the National Assembly in a bid to grant blanket powers to intelligence agencies, which will be able to raid and detain any citizen, even under suspicion of them breaching the law.
Yesterday, the bill was presented in the Senate amid fierce opposition and was referred to the standing committee for discussion.
Referring to the amendments during today’s proceeding, Ahsan said “unlimited powers” had been given to intel agencies under the bill “without any legislation”.
He stated that six SC judges were sitting in front of him at the moment and urged the apex court to take a suo motu notice on amendments made to the Official Secrets Act.
“There are martial law-like conditions in the country today,” Barrister Ahsan added.
Here, the CJP asked the lawyer if the amendments made to Officials Secrets Act were a bill or had become law. “It is under discussion in the Senate,” the latter replied.
“We don’t have much information regarding the matter … we have only read about it in newspapers,” Justice Bandial said. He also highlighted that a previous SC bench had ruled that the CJP could not take a suo motu notice alone.
“Fortunately, the bill is still being debated in one of the Houses,” the top judge remarked. “Let’s see what the other House of the Parliament does.”