CJP expresses reservations over military trial of civilians

CJ Bandial says civilians can’t be subjected to unconstitutional trial

ISLAMABAD:

Chief Justice Umar Ata Bandial remarked on Tuesday that civilians should not be subjected to trials which were not in accordance with the Constitution, noting that military laws were very tough and different from common legal provisions.

Heading a six-judge larger bench to hear the petitions against the trial of civilians in military courts, the chief justices emphasised on civilians having constitutional protection and maintained that the military courts conduct summary trials, do not issue reasons in their judgments, and don't record evidence either; the courts are not open for the public. 

The bench, including Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik, resumed the hearing the case.

The petitions have been filed by former chief justice Jawwad S Khawaja, the Pakistan Tehreek-e-Insaf (PTI) chairman, Pakistan Peoples Party (PPP) leader Aitzaz Ahsan and civil society.

The petitions came in the wake of announcement of the military trials of those involved in the violence and attacks on government properties, including military installations on May 9.

During the hearing, Supreme Court Bar Association President Abid Zuberi argued that in 1999, the principle had been established in the Liaquat Hussain case in the Supreme Court that civilians could not be tried in military courts.

He further argued that a constitutional amendment was required to conduct trials of civilians in military courts. He also said that the trials in the military court were conducted by executive officials and not by the judicial officials.

The SCBA president pointed out that in the 21st Constitutional Amendment, the right to appeal against the decision of the military courts in the high court and in the Supreme Court was granted.

After Zuberi, Attorney General for Pakistan (AGP) Mansoor Usman Awan started his arguments. He said that the 8th Constitutional Amendment and the Liaquat Hussain case had been discussed in the court before.

The Liaquat Hussain case was heard by a nine-member larger bench, while the full court had heard the 21st Constitutional Amendment case. The AGP then requested the court that he would want to read the court order of June 23.

In that order, Justice Yahya Afridi spoke about maintaining public trust and forming the full court. The AGP said that the federal government supported Justice Afridi's note and requested the chief justice to form the full court.

On that Justice Ayesha Malik told the AGP that he himself had raised objection to a judge [Justice Mansoor Ali Shah] sitting on the bench. She asked how the AGP could request for the full court.

The AGP replied that he was requesting for make a larger bench, comprising all available judges. Justice Malik then asked how could the AGP decide whether the bench was not formed of the available judges.

The chief justice remarked that he had seen Justice Afridi’s note. He told the AGP that when the case came to the Supreme Court, all judges were not present in Islamabad, adding that all those present, were asked to join the bench.

Later, the chief justice continued, two judges [Justice Qazi Faez Isa and Justice Sardar Tariq Masood] declined to join the bench and after three hearings, objection was raised against Justice Mansoor Ali Shah.

The chief justice further said that they were not in a position to form a full court now. He added that the members of the bench had given their opinion on the matter of the full court and he did not want to say anything about it.

Addressing the AGP, the chief justice said that it would be better if he gave his arguments. He asked the AGP to assist that court on the point that the trial of civilians should conducted in anti-terrorism courts, instead of military court.
Chief Justice Bandia remarked that this case was a question of the independence of the judiciary. He stressed that the May 9 incident was very serious crime and no-one was talking about releasing the accused.

The chief justice remarked that civilians could not have a trial that was not in accordance with the Constitution, adding that the military law was a very strict law, which was not like the common law.

Furthermore, he continued, the petitioners had said that there were flaws in the military courts, adding reasons were not given in the decisions of military courts, while civilians did not have the access during hearing of cases in military courts.

He emphasised that civilians held in military custody should be given all the facilities available in civilian custody, while the case was pending. He expressed his pleasure that families were allowed to meet the detainees in army custody.

Senior lawyer Irfan Qadir, the counsel for the defense minister, raised objections saying that he would argue for the separation of the chief justice and two other judges present in the bench, from the hearing.

Smilingly, the chief justice replied that his fellow judges were eagerly waiting to hear from him. While leaving the courtroom, he told Qadir that the court would listen to him. The hearing of case was adjourned until Wednesday (today).