SC declares trial of civilians in military courts “unconstitutional”

Supreme court

ISLAMABAD: The Supreme Court of Pakistan has declared military trials of civilians “unconstitutional”.

The Supreme Court bench announced the reserve verdict on Monday, after hearing arguments from the Attorney General. The case, marked by intricate legal arguments and a focus on constitutional interpretations, has captured the attention of legal experts and the public alike.

Here are the key highlights from the proceedings. In the beginning, nine miscellaneous petitions filed in support of military trials were dismissed by the court on grounds of withdrawal requests. The court also returned the petitions of the accused individuals who were in the custody of the army.

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There is a possibility that the Supreme Court may issue a summary judgment in this case, a move that could expedite the legal process.

During the proceedings, Attorney General Mansoor Usman Awan presented the arguments in favor of the trial of civilians in military courts. In his interpretation of the Army Act, the Attorney General emphasised that the Army Act applies only when the offense is related to the army and that it should not be confused with constitutional matters, such as Article 175.

The Attorney General contended that military courts could handle cases related to attacks on restricted areas and buildings, asserting that a constitutional amendment was necessary for trying terrorists, not ordinary citizens.

The justices of the Supreme Court posed critical questions, seeking to understand the legal foundations of the case. They inquired about the relationship between the accused and the armed forces and the applicability of fundamental rights suspension laws to civilians.

The discussion centred on whether laws designed for military discipline can be applied to civilians while preserving their fundamental rights. The Attorney General said that a court martial cannot be declared null and void on the basis of Article 175. He added that the accused will be tried under Section 2(1)(D2) of the Official Secrets Act.

Answering the question as to how the charge will be framed on the accused, the Attorney General said that all requirements at trial under the Army Act will be met. The trial of the May 9 suspects will be in the style of a criminal court, he said.

Reasons will be given in the decision, and evidence will be recorded. All the requirements of a transparent trial under Article 10A of the Constitution shall be fulfilled. He added that appeals can also be made in the High Court and then in the Supreme Court.

Justice Ejaz ul Ahsan asked that who were those that were tried in the military courts of the past. “Were the accused in 2015 civilians, foreigners or terrorists? Justice Ejaz inquired.

The Attorney General responded that the accused included both domestic and foreign nationals. Those who were tried in 2015 included facilitators of terrorists, the Attorney General said.

The Army Act is for establishing discipline in the forces, Justice Ayesha Malik said, adding that how can the law that exists for the discipline of forces apply to civilians. She also posed the question that how can the 21st Amendment be defended?

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To this the Attorney General responded by saying that the discipline of the forces is internal and obstruction of duty is an external matter. He said that the Army Act also requires officers to perform their duties and preventing someone from doing their duty also makes it a crime under the law.

The Attorney General referred to the case of Brigadier F.B. Ali, emphasizing that even though he had retired, he was still tried and charged under Section 2(1)(D). This case adds a historical precedent to the ongoing legal dispute.

It is to be seen whether the relationship of the accused with the Armed Forces is proved or not, Attorney General said, adding that the court reviewed the 21st constitutional amendment and declared that the right to a fair trial will not be affected.

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