ISLAMABAD: Attorney General for Pakistan (AGP) Mansoor Usman Awan on Friday requested the Supreme Court for a month on the matter of granting the right of appeal to people to be tried in military courts.
“This matter needs very careful consideration; It has to be done in such a way that the country’s position at the global level is not affected,” the AGP said.
The AGP’s request came during a hearing of identical petitions challenging the government’s decision to conduct trials of civilians in military courts.
The six-member bench comprising Chief Justice of Pakistan Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha Malik.
Amendments to Army Act
At the start of the hearing, AGP Awan took to the rostrum and reiterated the need for military courts. He also assured the bench that arrests were made very carefully after a thorough investigation.
He further contended that according to the Army Act, those breaking the discipline of civilian forces came under the law.
He then said he wanted to brief the court on the amendments to the Army Act.
However, Justice Akhtar inquired: “Does injuring an army officer amount to preventing him from performing his duty?”
He further slammed the AGP for contradictory statements: “On the one hand, it is stated that the state cannot make any law beyond human rights.
“On the other, you are saying that human rights are not applicable in this particular law.
“I am unable to understand the logic of your argument.”
“After the 21st constitutional amendment, the law of trial in military courts of civilians came into force,” the AGP said.
The CJP then inquired if civilians had been included after the amendment of the Army Act. The AGP confirmed that was the case.
Human rights question
During the hearing, Justice Akhtar asked the AGP: “If parliament wants to include basic human rights in the Army Act tomorrow, can it?”
“Parliament has full power to legislate,” the attorney general responded.
“This would mean that the parliament has the power to grant or not grant basic human rights in the Army Act,” Justice Akhtar probed.
“It is not possible that a parliament today includes fundamental rights in the military act and the next Parliament removes them,” he noted, adding that the law should be absolutely clear.
Justice Ahsan further remarked: “The 21st amendment was made to apply the Army Act to civilians.”
At this, Justice Ayesha contended that human rights were protected by the proposed procedure for trials in the 21st constitutional amendment.
The AGP then reiterated that he wanted to tell the court about the procedure of military trials.
However, Justice Akhtar remarked: “What is the need to explain the procedure of military trial when fundamental rights are not applicable?”
At this, the CJP asked the AGP to say what he wanted to.
Procedure of military trials
However, the CJP added, that independence of the judiciary is the basis of justice.
He said the Constitution would not be sidelined as it was in 2015.
“The right to appeal to an independent forum against the decision of a military court is a guarantee of fundamental rights,” he observed.
The AGP responded: “How the trial will be done is before the court.”
Detailing the procedure, he said: “First incident report is presented in military courts and the light of these reports, the commanding officer conducts a thorough investigation of the incident in a Court of Inquiry.”
After the investigation, civilians can be arrested under Sections 73 and 76 of the Army Act.
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.
A panel of three officers sits to conduct a military trial, the AGP said, adding that the accused are given full right to cross-examine all the evidence and witnesses.
Justice Afridi then asked: “A commanding officer decides whether a case is made or not?”
“During a military trial, the accused are given the right to have a lawyer,” the AGP said, adding the accused can also 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.
“The regular army trial of the suspect begins after someone denies the crime.”
In a military court, an officer is appointed as the presiding judge who independently reviews the proceedings.
The decision of the majority of the three trial officers in military courts is considered final, the AGP said.
He further said: “The accused can appeal against the death sentence in the Courts of Appeal.
“During the trial in military courts, the accused may consult a legal adviser.”
The CJP observed: “Accused are given very little time to defend themselves in military courts.” The AGP contradicted this.
Petitions
Following the arrests made in connection with the violent riots that erupted across the country on May 9, the government announced its decision to hold military court trials of those found guilty of damaging and attacking military instalments — a move both the government and the army considered a low blow.
In light of this decision, PTI Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and five civil society members, including Piler Executive Director Karamat Ali, requested the apex court to declare the military trials “unconstitutional”.
In this petition filed through his lawyer, the former CJP pleaded that Section 2(1)(d)(i) and (ii) of the Pakistan Army Act were inconsistent with the fundamental rights granted by the Constitution and should be struck down.
Moreover, five members of civil society from different cities — represented by Faisal Siddiqi — appealed to the apex court to declare illegal the trial of civilians in the military courts.
Similarly, Ahsan’s petition challenged the government’s decision to try civilians in military courts.
