Islamabad:
The Constitutional Bank (CB) of the Supreme Court has questioned the state of military judicial procedures against the protesters of May 9 if their cases are transferred to the Anti -Terrorist Courts (ATC).
A CB of seven members resumed the audition of the Government’s intra-couurt appeals against the previous order of the SC that annulled the judgment of civilians in the military courts.
Representing civil society petitioners, the lawyer Faisal Siddiqi argued that if the Court accepted its position, the Law of the Army of Pakistan, 1952, would remain intact, but the trials of May 9 accused would be annulled. He explained that the undecided cases would move to ATC, while the cases in which the sentences had already been executed would be considered “past and closed transactions”
Judge Muhammad Ali Mazhar asked if ATCs would make new judgments or trust the military court. The judge of the head of CB, Aminuddin Khan, questioned whether to declare verdicts of the “past and closed” military courts “would validate the judgments.
In response, Faisal Siddiqui declared that the military trial was challenged in the Supreme Court due to the application of article 245 of the Constitution.
Article 245 describes the role of the Armed Forces to defend the country and help civil authorities. Judge Aminuddin Khan said that article 245 was not in force on May 9, 2023. He was invoked when the requests were presented.
Previously, Faisal Siddiqui declared that the question was not how the 105 accused individuals were selected for military trial, but rather if the law allowed it.
Judge Aminuddin Khan commented that the issue of delivering to the defendant was a matter of registration. He asked if the Siddiqi client challenged section 94 of the Pakistan Army Law, 1952.
The lawyer replied that when delivering the defendant, his crimes had not been determined. “We have also challenged the unlimited discretionary powers under section 94 of the law,” he added.
Section 94 of the Law of the Army of Pakistan, of 1952, establishes that when a criminal court and a martial court have jurisdiction regarding a civil crime, it will be at the discretion of the prescribed officer to decide before which courts the procedures will be instituted.
“If that officer decides that they will be instituted before a martial court, [it shall be in the discretion of the prescribed officer] To direct that the accused person will be detained in military custody, “he says.
The lawyer argued that the officer who decided to transfer the cases against the defendants to the military courts had unlimited authority, while even the powers of the prime minister are not unlimited. “The authority regarding the transfer of accused people must be structured,” he said.
Judge Hassan Rizvi asked if the police investigation was slower than that of the military and if any material evidence was available at the time of transfer.
Faisal Siddiqui replied that the availability of material evidence was not the problem. The root of the problem, according to him, was the unlimited power to transfer the accused people. The command officer requests the transfer in section 94, he added.
Judge Jamal Khan Commandkhail asked if the ATC had the authority to reject the application for transfer made by the commanding officers. The lawyer said that the ATCs had the power to reject said request.
Judge Aminuddin Khan commented that this defense could have been adopted by the defendant in the ATC or during an appeal. Judge Muhammad Ali Mazhar said that the ATC had not even issued notices to the defendant and had decided the issue based solely on the commander’s request.
Judge Commandkhail declared that section 94 applies to those who fall under the jurisdiction of Pakistan’s army law, 1952. Once the ATC made its decision, the accused was subject to the law since the ATC had the power to reject the request of the officer in command, he added.
Siddiqui argued that the decision of the martial court should have been taken before delivering to the defendant. If a decision had not been made for a martial court, then how could the transfer of accused people be justified?
Judge Hassan Rizvi asked if the request of the officer in command provided reasons for the transfer. The lawyer replied that no reasons were mentioned in the application.
However, Judge Naeem Akhtar Afghan did not agree with the claim indicated that the request included reasons, specifying that the defendant was accused under the law of official secrets of 1923.
Judge Commandkhail observed that the procedure to file a complaint under the Official Secrets Law of 1923 was clearly described in the Code of Criminal Procedure (CRPC).
“This request must be submitted to a magistrate, who would register statements and decide whether an investigation was justified,” he added.
Faisal Siddiqui argued that such request could also be submitted in FIR. He said it was established that only the federal government could file a complaint under the law of official secrets, and a private individual could not do so.
“Complaints under the Law of Official Secrets could also be presented under the rules of the Army,” he said.
Judge Commandkhail said that, according to the army rules, an investigation must be carried out first, but even for an investigation to begin, there must be a formal complaint.
He also questioned whether the executive’s discretion still remained after article 175. “Article 175 eliminates the issue of discretionary power completely,” he said.
Article 175 of the Constitution deals with the separation of powers between the Judiciary and the Executive. It emphasizes that the Judiciary must function independently and not be influenced by the Executive Power. The CB will resume the audition of the case today.
