Missing persons case: Legal points raised on trial of servicemen

SC proposes larger bench to decide on legal lacunas pertaining to trial of army men.

ISLAMABAD:

A two-member bench of the Supreme Court (SC) has recommended formation of a larger bench to decide on the legal lacunas pertaining to the trial of serving military officers, for their alleged role in orchestrating enforced disappearances.

The apex court’s bench, headed by Justice Jawwad S Khawaja was hearing a suo motu case regarding the alleged disappearance of 35 missing persons from an internment centre in Malakand.

“In order to ensure the uniform consideration over questions related to the trial of military officials, it may be appropriate that this case be heard before a larger bench,” the court observed.

In March, the defence minister lodged an FIR against army officials in a case involving illegal removal of 35 undeclared inmates from a prison facility in Malakand.

The provincial administration decided to close the case against members of the armed forces– including Naib Subedar Amanullah Baig. Subsequently, the matter was referred to military authorities for further investigation and a trial under the Pakistan Army Act 1952.

During the hearing, the judges raised four legal questions about the trial of officials and asked the AGP and Advocate General K-P to assist the court during the proceedings.

The bench questioned as to how to deal with serving members of the army when accused of an offence under Pakistan Penal Code.

Similarly, the top court also sought clarity over whether the ordinary criminal courts are obliged to accede to the request made by the military authorities or is it within the discretion of the ordinary courts to determine whether or not to allow the request of the military authorities for transfer of the case to them.

Additionally, the SC raised questions over the ordinary forum’s authority to exercise discretion in the matter of a request received from the army authorities, should such requests be considered?

AGP Salman Aslam Butt submitted classified reports on behalf of defence ministry. After going through the documents Justice Khawaja said that, “All state institutions are sacrificing for the country. We should attempt to resolve the problems of people.”

At the outset of the hearing, AGP requested the bench to allow in-camera hearing. However, the bench declined the request, saying that everything would be done in the open court from now onwards.

Published in The Express Tribune, June 6^th, 2014.