Supreme Court Rejects Federal Government’s Request for Full Court Bench in Military Courts Trial Case

By | July 18, 2023

The Supreme Court of Pakistan has denied the federal government’s plea to form a full court bench for the hearing of petitions questioning the trial of civilians in the country’s military courts. The case was resumed by a six-judge larger bench, led by Chief Justice of Pakistan (CJP) Umar Ata Bandial, including Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A. Malik.

During the hearing, CJP Bandial informed Attorney General for Pakistan (AGP) Mansoor Usman Awan that judges were not available at the moment, making it impossible to constitute a full court bench. The federal government had previously presented its stance, asserting that trying individuals accused of violence against the armed forces under the Pakistan Army Act (PAA) of 1952 was an appropriate and proportionate response within the constitutional framework and statutory regime.

The government urged the court to dismiss all petitions, emphasizing that Article 245 of the Constitution charges the armed forces with the obligation to defend Pakistan against external aggression or the threat of war. Therefore, to establish deterrence against such attacks, the constitutional framework allows for the trial of perpetrators of vandalism and violence under the PAA.

Furthermore, the government requested the case to be heard by a full court, noting that Justice Yahya Afridi, one of the bench members, had previously recommended referring the matter to the full court.

Today’s Hearing

During the hearing, Abid Zuberi, the President of the Supreme Court Bar Association (SCBA), presented a detailed response on behalf of the SCBA, stating that he would assist the court on five key points. CJP Bandial welcomed his opinion.

Zuberi referred to the Liaqat Hussain case, where the apex court had ruled that civilians could not be tried in military courts. He cited the judgment by former CJP Justice Ajmal Mian, who stated that only military personnel could be tried under army laws. Zuberi emphasized that a constitutional amendment was required to try civilians under the Army Act, and the main criterion for the trial should be establishing a direct link between the suspects and the crime in question.

CJP Bandial engaged in a conversation with Zuberi, questioning the need for a constitutional amendment and stating that civilians could be tried in military courts once they were directly linked to the crime. However, Justice Ahsan pointed out that the Liaqat Hussain case did not require a constitutional amendment and raised the question of whether one was necessary for matters concerning the army’s internal affairs.

As Zuberi concluded his arguments, CJP Bandial mentioned that the ruling in the Liaqat Hussain case allowed military authorities to investigate but not conduct trials of civilians. Justice Ahsan inquired about the authority responsible for determining the applicability of the Army Act. Zuberi responded by stating that the police were responsible for the investigation and decision-making process.

AGP Awan commenced his arguments by addressing the petitions and the objections raised by the federal government. He presented Justice Afridi’s note, which called for the formation of a full court, including the objections of other bench members. Justice Ayesha requested Awan to also read the June 26 verdict, which highlighted the government’s objection to one of the bench members and questioned whether the government could now request a full court. Awan proposed the formation of a full court with the available judges.

Justice Ayesha questioned the decision-making process and the acceptance that the Chief Justice would decide the bench’s formation. Justice Akhtar stated that the current bench had heard the case extensively and urged the AGP to proceed with his arguments. Consequently, the government’s request to form a full court bench was rejected, and the hearing was adjourned until the following day.

The Petitions

The petitions challenging the trial of civilians in military courts were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan. Khawaja’s petition, submitted through Advocate Khawaja Ahmad, sought a declaration from the court, deeming the trial of civilians in military courts unconstitutional. The petition further requested the suspension of proceedings against civilians based on specific sections of the Pakistan Army Act and the prevention of military courts from issuing final orders against civilians based on those sections.

Another petition, filed by members of civil society through their counsel Faisal Siddiqi, claimed the trial of civilians in military courts regarding the May 9 violence was illegal. Ahsan’s petition aimed to ensure that none of the thousands of civilians arrested and nominated for trial about the May 9 violence would be tried in military courts. He clarified that he did not seek to impede the trial of civilians in any legally established court.

Imran Khan, in his petition, called for a declaration against the arrests, investigation, and trial of civilians during peacetime under the Pakistan Army Act of 1952 and the Official Secrets Act of 1923.

The Supreme Court’s decision to reject the federal government’s request for a full court bench emphasizes the ongoing debate over the trial of civilians in military courts in Pakistan. As the case continues, further insights into the constitutional and legal aspects of the matter are expected to unfold.

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