Islamabad: The Constitutional Bank of the Supreme Court, which listens to requests against the military trial of civilians, has urged to transfer the cases of civilians to the Anti -Terrorist Courts (ATCS).
Faisal Siddiqi, who represented civil society, proposed that the transfer of cases would be a “through the media”, the middle road.
He added that if the judgments made by the military courts were invalidated, the cases of civilians delivered maximum sentences by the military courts must be sent to the ATCs, while the cases in which the convicts have completed their punishments must be considered “past and closed transactions.”
“If the court accepts my argument, the judgment of civilians by the military courts must declare itself void and null,” said Siddiqi.
Faisal Siddiqi says that the power of officers to transfer the custody of the defendant to the army should not be unlimited
Directed by Judge Aminuddin Khan, the CB of seven judges resumed the hearing on a set of intra-couurt appeals filed against the October 2023 order of the Court of annulling the military trial of civilians involved in the violence of May 9.
The central issue in this case was the appropriate forum to prove civilians, the lawyer argued, adding that civilians must be tried in civil courts to guarantee adherence to fundamental rights.
On the suggestion of Mr. Siddiqi, Judge Muhammad Ali Mazhar commented if he was looking for new judgments of those already convicted of his participation in the violence of May 9.
“If these cases are transferred from the military courts to civilians, where would the judgments begin?” The judge asked.
He also questioned whether the ATCs should discuss the evidence registered during military judgments as admissible.
The lawyer said he was asking for a new trial limited by ATC of those who received maximum punishments as six to ten years in prison.
Judge Khan, who directed the bank, asked the lawyer to accept the concept of past and closed transactions, wouldn’t it mean to support the military judgments of civilians?
Unlimited authority
The court also questioned how it was decided what case would be prosecuted by the military courts.
The question is not how 105 accused for military trial were selected, said the lawyer, adding that the question was whether the law allowed it or not.
Judge Khan then asked Mr. Siddiqi if he had challenged section 94 of the Pakistan Army Law, which deals with cases that can be tried in civil and military courts.
“When a criminal court and a martial court have each jurisdiction regarding a civil crime, it will be at the discretion of the prescribed officer to decide before which court the procedures will be instituted …”
The Alita section that yes “[an] The officer “decides that the case will be tried in a military court, the defendant must be put into military custody.
The lawyer replied that the crime, which falls under the law of the army, was not determined when the custody of the accused was transferred to the military courts.
He added that he had also challenged the “unlimited discretion” of section 94 in his request.
The authority of the officer who decides the transfer of custody to the military courts should not be unlimited, “said Siddiq.
When the discretion enjoyed by the prime minister is subject to certain limits, why the author’s authority commander to decide the transfer of custody was unlimited, the lawyer argued.
He also emphasized the need to “structure power” to transfer custody to military courts.
During the hearing, Judge Syed Hasan Azhar Rizvi observed whether the investigations carried out by the police were slow and those of the military authorities were fast.
He also questioned the evidence available when transferring custody.
The lawyer, however, argued that the root cause was not the availability of registered evidence, but the “unlimited power” exercised by the officer in relation to the transfer of custody.
Judge Jamal Khan Commandkhail commented if the executive’s discretion ended after article 175 of the Constitution, which describes the jurisdiction of the courts, underlining the independence of the Judiciary of the Executive influence.
The lawyer argued that the military judgment of civilians was challenged before the Supreme Court under article 245, which refers to the deployment of armed forces in the aid of civil power.
Judge Khan observed that when the events of May 9 took place, the Government had not been invoked by the Government.
The lawyer replied that article 245 was in the field when the military trials were challenged before the Supreme Court. The audience will restart today (Tuesday).
Posted in Dawn, March 4, 2025
