ISLAMABAD, JUL 19: The Supreme Court (SC) on Wednesday directed Attorney General for Pakistan (AGP) Mansoor Usman Awan to seek directives from the government regarding the right of appeal in military courts.
The directive came as a six-member Supreme Court (SC) bench, headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and consisting Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A. Malik, heard a set of pleas challenging the military trials of civilians.
During today’s hearing, AGP Awan said that the violent incidents of May 9 had caused losses of Rs2.5 billion, including Rs1.9bn to military installations, as he again called for the formation of a full court.
A day earlier, CJP Bandial had observed that civilians should not be put through the rigours and harshness of military courts, since they enjoy certain constitutional protections, and besides, such trials were not according to the Constitution.
“The military law is a tough law and meant to be different from the ordinary law that may be good for military personnel only,” the CJP had observed. One of the concerns about such trials, the CJP observed, was that the verdicts of a military court were not open to the public, nor subject to judicial review.
The observation came when AGP Awan cited a June 23 note by Justice Yahya Afridi, in which the judge had urged the CJP to consider reconstituting a full court consisting of all available judges to hear the matter.
The chief justice had also turned down the government’s request to form a full court to hear the petitions, explaining the unavailability of judges. He had also expressed satisfaction over the treatment of suspects facing military trials.
Earlier this week, the federal government had argued that the trial of those accused of violence against the armed forces under the Pakistan Army Act (PAA) 1952 was an apt and proportionate response under the constitutional framework and statutory regime.
Today’s hearing
At the outset of today’s hearing, AGP Awan came to the rostrum to continue his arguments. He informed the bench that the attack on the Lahore Corps Commander House took place at 5:40pm, noting that all attacks on military installations took place “approximately at the same time”.
“On May 9, sensitive military installations were attacked between 3pm and 7pm,” he said. AGP Awan said that a wall was demolished at the Mianwali airbase where aircraft were parked, adding that fuel for the planes was also present there at the time.
He said that the office of the Inter-Services Intelligence’s (ISI) Hamza Camp in Rawalpindi and the Armed Forces Institute of Cardiology were also attacked by rioters. “Violent incidents also took place in Rawalpindi’s Chaklala,” he said, adding that petrol bombs were also used.
He said that the violent incidents of May 9 had caused losses of Rs2.5 billion. The AGP also showed pictures of people entering General Headquarters Rawalpindi as well as images of miscreants wearing the Lahore Corps Commander’s uniform.
The attorney general said that a Canteen Store Department (CSD) store was set ablaze in Lahore. He said that the miscreants involved in attacking the Faisalabad ISI office were allegedly armed. Further detailing the violence of May 9, AGP Awan said that Lahore and Peshawar were “laid to waste” while the toll plaza on the Swat motorway was also set ablaze.
“On May 9, the situation in Sindh and Balochistan was under control,” he noted. He further said that the army showed “flexibility” regarding the May 9 incidents. “Military officers are not trained to deal with protesters like police officials are,” he said.
“Are you saying that army officers only know how to shoot?” CJP Bandial asked. At this, AGP Awan said that army officers were not taught how to disperse such crowds.
Sensitive military installations, including the Lahore Corps Commander House, GHQ and airbases, were attacked in a “systematic manner”, he said. He further said that military installations had suffered a loss of Rs1.9bn while more than 200 people, including 184 law enforcers, were injured during the violence.
“The events of May 9 did not happen suddenly, they were carried out in a systematic manner,” the AGP said as he again requested for a full court bench to hear the pleas against military trials of civilians.
The attorney general contended that such an incident had never before taken place in the country’s history. Talking about the Liaqat Hussain case, which was also referenced during previous arguments by the petitioners’ lawyers, he said that the crime was civilian in nature. “Even in the 21st Amendment [case], the crime was of a civilian nature,” he said.
At this, Justice Naqvi interjected and said that the case concerning the 21st Amendment was completely different. “Military courts were established through a constitutional amendment,” he said.
“You are saying that it is the first time the people attacked military installations,” the CJP remarked. He also asked AGP Awan to talk about the points raised by the petitioners. “What is the punishment in military courts under Section 7 of the Army Act?” he asked.
“Under Sections 3 and 9, the punishment in military courts is two years imprisonment,” the AGP responded.
“Is that the maximum punishment?” the CJP asked, to which the AGP replied in the affirmative.
“Then the punishment in ordinary courts is more,” Justice Bandial observed, adding that there were more severe punishments under civil laws.
Justice Akhtar then said that the data and facts as well as the allegations put forth by the attorney general were “very serious” in nature. “Entering a prohibited area is also a crime,” he said, adding that Section 3 of the Army Act would be applicable in this case.
Justice Bandial then remarked that there was an element of “seriousness” regarding the events of May 9. “In my memory, there is no such incident where institutions were attacked across the country,” he observed.
He told the AGP to assure the court that fair trial and processes would be followed before giving arguments on the constitutional aspect of the case. “Certainly, the court will not allow something that is unconstitutional,” he said.
“If the right of appeal is to be given in a trial under the Army Act, then give it through legislation,” Justice Afridi said. CJP Bandial remarked that the AGP would have to satisfy the court that the right of appeal would be given.
“The question is whether or not one will have the right to appeal in a court created under the Constitution,” Justice Afridi said.
Justice Bandial then observed that Indian spy Kulbhushan Jadhav was given the right of appeal, to which the AGP said that the “alien” was given the right through legislation.
“Is he ‘alien’ or Indian? The word alien has other interpretations,” Justice Ahsan remarked with a smile.
CJP Bandial then asked the AGP to seek instructions from the government regarding whether a right of appeal would be given or not. The AGP said that he would be able to seek instructions in this regard by Friday, following which the hearing was adjourned till then.
The pleas
The petitions were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan.
Khawaja, who filed the petition through his counsel Advocate Khawaja Ahmad, requested the top court to declare the trial of civilians by military courts unconstitutional.
The former CJP pleaded that Section 2(1)(d)(i) and (ii) of the Pakistan Army Act were inconsistent with the fundamental rights conferred by the Constitution and therefore void, and should be struck down.
As an interim measure, all proceedings against civilians based on the sections should be suspended or, in the alternative, any military court should be restrained from passing a final order in any case against civilians based on the sections, the petition stated.
Before this petition, five members of civil society from different cities, through their counsel Faisal Siddiqi, sought as illegal the trial of civilians in the military courts in connection with the violence in the country of May 9.
Likewise, Ahsan, who has also served as a former law minister and also spearheaded the 2007 lawyers’ movement, explained that the primary purpose of his petition was to ensure that none of the thousands of civilians who have admittedly been arrested for allegedly having partaken in the May 9 violence and being nominated for trial be tried by military courts.
The petitioner said he did not seek to scuttle the trial of any civilian before any lawfully established court of criminal jurisdiction.
In his petition, the PTI chairman sought a declaration against the arrests, investigation, and trial of civilians in peacetime under the Pakistan Army Act (PAA) 1952 as well as the Official Secrets Act 1923.
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