Adjourning the hearing of a set of petitions challenging civilian trials in military courts indefinitely on Thursday, Chief Justice of Pakistan (CJP) Umar Ata Bandial remarked that the Supreme Court will not allow the Pakistan Army from carrying out any unconstitutional act.
“Those who build their case on the Constitution of Pakistan and law will be successful,” said CJP Bandial reported by private TV channel.
The six-member bench led by CJP Bandial and comprising Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Ayesha A Malik and Justice Yahya Afridi adjourned the hearing for an indefinite period.
During the hearing, prominent lawyer Aitzaz Ahsan raised concerns about a new law granting unlimited powers to spy agencies. He informed the court that the legislation allows intelligence agencies to conduct raids on individuals’ homes without a warrant, sparking concerns about privacy rights.
Responding to these concerns, CJP Bandial clarified that a suo motu notice cannot be taken by a chief justice alone, as per a previous decision by a larger bench. He also pointed out that the bill in question is still under discussion in the Parliament, and the court had limited knowledge about its specifics.
Aitzaz Ahsan said that the bill, which grants these controversial powers to intelligence agencies, had been passed by the National Assembly, though it was still being debated in the other House of parliament.
Justice Munib Akhtar remarked that the trial of civilians in military courts creates a parallel justice system, drawing attention to its potential implications for the rule of law in the country. During the proceedings, it was noted that the situation in the country has raised concerns similar to those during martial law, prompting further scrutiny of the issues at hand.
Despite the adjournment of the hearing, Justice Bandial assured that the Supreme Court would carefully evaluate the matter, adding that those who present their case based on the Constitution of Pakistan and law would find success in the court.
Justice Afridi asked what the lawyer’s opinion was of articles 175 and 175(3).
Attorney General for Pakistan Mansoor Usman Awan said a court martial did not fall under Article 175. Fundamental human rights cannot be left to the discretion of the legislature, Justice Akhtar remarked, adding that the state cannot withdraw the concept of fundamental human rights.
“Access to justice is a fundamental human right,” Justice Malik said.
The AGP said military courts are like tribunals for people connected with the armed forces and defence. He added that a court martial did not fall under the category of a court established under Article 175, therefore, there is no right of appeal in it.
The CJP remarked that the court was conducting a constitutional review of trials of civilians in crimes under the Army Act. “We are now moving towards the constitutional procedure,” CJP Bandial said, asking how a case goes to military court.
The AGP added that the establishment of military courts is meant for members of the armed forces and defense matters. He further said that a military court can try a civilian accused of a crime related to the armed forces.
The CJP said the law and forces are clearly mentioned in the Constitution. This law is meant for the persons who fight against the armed forces. The AGP asked to read out the Supreme Court’s 2015 decision that he said mentions the attack on military installations. Justice Akhtar asked if a parallel judicial system was created for such persons.
Adjourning the hearing indefinitely, the CJP said the hearing cannot be held again for the next two weeks, adding that he will fix a date after consultation with his colleagues. “I will try to convince my colleagues when they return,” he added.
“You want to take away the basic human rights of people through the military courts,” the CJP remarked. He added that if a trial is conducted on connections with the armed forces, this will also have to be seen.
