The Attorney General for Pakistan (AGP), Mansoor Usman Awan, stated unequivocally in a recent court hearing that no civilian was being tried in military courts. His comments were made during the fourth hearing of the petitions challenging the trial of civilians in these courts.
In the previous hearing, the Chief Justice of Pakistan (CJP), Umar Ata Bandial, requested the AGP to reassure him that no such trial would occur while the case was still in process. However, contrary information came later from Major General Ahmed Sharif Chaudhry, Director General of Inter-Services Public Relations (ISPR), who said proceedings against 102 people handed over for trial were in progress.
Petitions and Arguments Presented
Several petitions challenged the government’s decision to try civilians in military courts. The government announced that those involved in the violence that erupted on May 9, where various government buildings and army installations were vandalized, would be tried under army laws.
The petitions, submitted separately by a range of individuals, including PTI Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and five civil society members, are requesting the apex court to declare the military trials unconstitutional. Arguments against the trials have been completed by the lawyers representing these individuals.
The court also heard the contradictory positions of AGP and ISPR DG concerning the current status of civilian trials in military courts. AGP reiterated his statement of no ongoing civilian trials, stating that representatives from the Ministry of Defence could provide better clarification.
Civilian Trials in Military Courts
The court then discussed whether civilians could be tried under the Army Act. The PTI counsel, Bhandari, contended that civilians could not be tried in military courts and that Parliament would need to make a constitutional amendment to allow such trials. However, Justice Ayesha questioned this, suggesting that civilians could potentially be tried in military courts if internal military relationships were involved.
Justice Afridi inquired whether civilians were being linked to forces internally, to which the AGP confirmed that the inquiry examined accusations of facilitation within the army. As per the F B Ali case, Justice Ayesha stated that civilians could be tried in a military court if they had internal relations with the forces.
However, the court sought clarity on how it was determined that a civilian was internally connected and thus eligible for a military trial. Further, they needed to understand under what law cases of the accused were being transferred to army courts.
The court also emphasized the importance of transparency in using discretionary power to allow trials of civilians in military courts. It noted that such trials were permissible in war situations only, according to the F B Ali case.
Protecting Fundamental Rights in the Judicial Process
The hearing also focused on protecting fundamental rights in the context of military trials. It was argued that civilians could not be deprived of these rights, and only those civilians who “influence” the forces’ operations could be applied under Section 2D of the Army Act.
The counsel for PTI contended that a judge appointed under Article 175 (3) should conduct the civil trial of civilians to uphold fundamental rights. He added that the court martial of civilians doesn’t reflect well on the judicial system.
Justice Ayesha pointed out that for a trial under the Army Act, the offence must be under the Official Secrets Act, and requested to view the Act. According to this Act, it’s an offence to attack or use any restricted area for the enemy’s benefit.
The court hearing was adjourned after recognizing the significance of maintaining the morale of army officers.
