As the apex court resumed its hearing against the trial of civilians in military courts, CJP Umar Ata Bandial appeared to have adopted a markedly critical tone about the matter, raising serious apprehensions on the military justice.
After a 20-day break in the hearing of the petition, a change is being witnessed in CJP's approach as he emphasised civilians having constitutional protection, the CJP went on to say that the military courts conduct summary trials, do not issue reasons in their judgments, and don't record pieces of evidence either; the courts are not open for the public.
Two months before his retirement, CJP Bandial's remarks against military justice are crucial.
Justice Bandial added that civilians should not be subject to undue harshness as he noted that military laws were very tough and different from ordinary provisions. Nonetheless, he conceded that May 9 incidents were of a serious nature.
Earlier during the first round of hearings, the chief justice had made it clear that they would not focus on the vires of law which authorise the trial of civilians in military courts. He, however, had expressed concern over non-following the procedure to ensure a fair trial and due process by noting that the commanding officer did not attach material in the application submitted to the Anti-Terrorism Court (ATC) for handing over the custody of the accused persons.
He also noted that the ATC judge did not pass a speaking order on his application.
However, the chief justice is consistently asking the military authorities through Attorney General for Pakistan (AGP) to give appropriate facilities to civilian detainees. He on Tuesday acknowledged them for convening a meeting of 102 prisoners with their family members.
Far-reaching implications
Expressing apprehensions, a senior lawyer wondered whether declaring the trial of civilians unconstitutional will have far-reaching implications locally as well as internationally. He also reckoned why the apex court does not take up matters wherein trials of more than a hundred civilians in military courts were quashed by the Peshawar High Court (PHC).
Another senior lawyer believed that the bench will not strike down provisions of the Army Act nor will declare that civilians cannot be tried by military courts. "It might declare that these particular May 9 cases are not triable by military courts as either offence not made out or procedure not followed," he added
Likewise, the same court had declared the detention of civilians in internment centres unconstitutional. Both matters are pending for the last three years but these were not fixed for hearing for one time during incumbent CJP Bandial's tenure.
However, today's hearing was significant wherein the five judges will decide on their fellow – Justice Yahya Afridi – recommendation as to whether the full court should be constituted to hear petitions against civilians’ trials in military courts.
On Tuesday, they were not interested to form the full court at this stage as the matter has been heard at length. However, before rising the court, CJP told AGP Mansoor Awan that they would give thought to his plea regarding the constitution of the full court.
It is learnt that the government was still hopeful that five judges who are being considered as members of CJP's section would agree regarding the constitution of the full court today (Wednesday).
It was noted that perhaps that was the reason why AGP Mansoor Awan did not allow Defence Minister Khawaja Asif's counsel Irfan Qadir to raise objections on some members of the bench. The AGP was visibly upset about Qadir's aggressive style toward the bench.
It was also learnt that if the bench rejects the government's plea today (Wednesday), Irfan Qadir might again raise objections on the bench.
Meanwhile, Prime Minister Shehbaz Sharif has engaged ex-AGP Ashtar Ausaf Ali in this case. Earlier, Dr Farogh Naseem was representing him.
Former additional attorney general Tariq Mahmood Khokhar said that the trial of civilians in military courts is not permissible under the law, nor the constitution. Pakistan’s obligations under international law require “equality before the courts and the right to a fair and public hearing by a competent and independent court established by law”.
"There is a consensus that trying civilians in military courts is not compatible with obligations under international law. The jurisdiction of military courts should be confined to strictly military offences committed by military personnel: civilians should not be tried in military courts", he added.
"We witnessed today the constitution’s third co-equal, standing against raw power, with intellectual integrity and moral courage. The military courts' case could yet be this CJP’s finest hour," Khokhar further said.
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