ISLAMABAD:
The constitutional bench (CB) of the Supreme Court has questioned the status of military court proceedings against May 9 rioters if their cases are transferred to anti-terrorism courts (ATCs).
A seven-member CB resumed hearing the government’s intra-court appeals against the SC’s earlier order annulling the trial of civilians in military courts.
Representing civil society petitioners, lawyer Faisal Siddiqi argued that if the court accepted his stance, the Pakistan Army Act, 1952, would remain intact, but the trials of May 9 accused would be nullified. He explained that undecided cases would move to ATCs, while cases where sentences had already been executed would be considered “past and closed transactions”
Justice Muhammad Ali Mazhar asked whether ATCs would conduct fresh trials or rely on military court evidence. CB head Justice Aminuddin Khan questioned whether declaring military court verdicts “past and closed” would validate the trials.
In response, Faisal Siddiqui stated that the military trial was challenged in the Supreme Court due to the application of Article 245 of the Constitution.
Article 245 outlines the role of the Armed Forces in defending the country and assisting civil authorities. Justice Aminuddin Khan pointed out Article 245 was not in effect on May 9, 2023. It was invoked when the petitions were filed.
Earlier, Faisal Siddiqui stated that the question was not how the 105 accused individuals were selected for military trial, but rather whether the law permitted it.
Justice Aminuddin Khan remarked that the issue of handing over the accused was a matter of record. He asked if the client of Siddiqi challenged Section 94 of the Pakistan Army Act, 1952.
The lawyer responded that at the time of handing over the accused, their crimes had not been determined. “We have also challenged the unlimited discretionary powers under Section 94 of the Act,” he added.
Section 94 of the Pakistan Army Act, 1952 states that when a criminal court and a court martial have jurisdiction in respect of a civil offence, it shall be in the discretion of the prescribed officer to decide before which court the proceedings shall be instituted.
“If that officer decides that they shall be instituted before a court martial, [it shall be in the discretion of the prescribed officer] to direct that the accused person shall be detained in military custody,” it states.
The lawyer argued that the officer who decided to transfer the cases against the accused to military courts had unlimited authority, whereas even the prime minister’s powers are not unlimited. “The authority regarding transfer of accused persons should be structured,” he said.
Justice Hassan Rizvi inquired whether the police investigation was slower than the military’s and whether any material evidence was available at the time of the transfer.
Faisal Siddiqui replied that the availability of material evidence was not the issue. The root of the problem, according to him, was the unlimited power to transfer accused individuals. The commanding officer requests the transfer under Section 94, he added.
Justice Jamal Khan Mandokhail asked whether the ATCs had the authority to reject the transfer request made by commanding officers. The lawyer said the ATCs indeed had the power to reject such a request.
Justice Aminuddin Khan remarked that this defense could have been adopted by the accused in the ATC or during an appeal. Justice Muhammad Ali Mazhar pointed out that the ATC had not even issued notices to the accused and had decided on the matter solely based on the commanding officer’s request.
Justice Mandokhail stated that Section 94 applies to those who fall under the jurisdiction of the Pakistan Army Act, 1952. Once the ATC made its decision, the accused became subject to the Act as the ATC had the power to reject the commanding officer’s request, he added.
Siddiqui argued that the decision to court-martial should have been made before handing over the accused. If no decision for a court-martial had been taken, then how could the transfer of accused individuals be justified, he asked.
Justice Hassan Rizvi asked whether the commanding officer’s request provided reasons for the transfer. The lawyer responded that no reasons were mentioned in the request.
Justice Naeem Akhtar Afghan, however, disagreed with the claim stating that the request did include reasons, specifying that the accused were charged under the Official Secrets Act, 1923.
Justice Mandokhail observed that the procedure for filing a complaint under the Official Secrets Act, 1923 was clearly outlined in the Code of Criminal Procedure (CrPC).
“Such a request should be submitted to a magistrate, who would record statements and decide whether an investigation was warranted,” he added.
Faisal Siddiqui argued that such a request could also be filed in the form of an FIR. He said it was established that only the federal government could file a complaint under the Official Secrets Act, and a private individual could not do so.
“Complaints under the Official Secrets Act could also be made under Army Rules,” he said.
Justice Mandokhail noted that under Army Rules, an investigation must take place first but even for an investigation to begin, there must be a formal complaint.
He also questioned whether the executive’s discretion still remained after Article 175. “Article 175 eliminates the issue of discretionary power altogether,” he said.
Article 175 of the Constitution deals with the separation of powers between the judiciary and the executive. It emphasizes that the judiciary must function independently and not be influenced by the executive branch. The CB will resume hearing the case today.
