Accused to be allowed contact with family within 24 hours AGP tells SC

The Supreme Court on Tuesday rejected a request to stay the military trial of civilians arrested for May 9 vandalism, after Attorney General for Pakistan (AGP) Mansoor Awan provided assurances to the court. The six-member bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial was hearing petitions against military courts trying civilians in connection with their involvement in the May 9 violence. In addition to the CJP, the bench comprises Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahar Naqvi and Justice Ayesha Malik. AGP Awan had last Friday informed the Supreme Court that 102 people were in the army’s custody and none of them were juvenile or women. The AGP reiterated his earlier stance while speaking to journalists informally today ahead of the hearing, saying "No civilians are currently on trial [in military courts]. The civilian trials have begun," he explained. Notably, Director General Inter-Services Public Relations (DG ISPR) Major General Ahmed Sharif Chaudhry told a news conference yesterday that “102 miscreants are being tried in military courts and this process is going on” and the civil courts have transferred the cases to these courts under the law. Read CJ expects temporary halt to military trials According to the spokesperson, "All the planners and facilitators connected with the events of May 9 will be punished according to the Constitution of Pakistan and the law, regardless of their affiliation with any organisation, political party or social status.” It may also be mentioned here that the DG ISPR also confirmed that the Pakistan Army has dismissed its three senior officers, including a lieutenant general, for their failure to prevent rioters on May 9 from ransacking military installations. At the outset of the hearing, the Pakistan Tehreek-e-Insaf (PTI) chairman's lawyer Uzair Bhandari argued before a larger bench that the military's media wing has confirmed civilians are being tried in military courts. PTI lawyer Bhandari said that he would focus his arguments against the military trial of civilians, "I have nothing to do with the issue of trial against the soldiers". "The DG ISPR said yesterday that a trial is ongoing," he stressed, "and this contradicts the AGP's statement." The AGP responded that he still stood by his earlier statement. "So far no civilian has been tried in military courts," he emphasised. “We believe you,” CJP Bandial said. Bhandari argued that “even the parliament cannot allow the trial of civilians [in military courts] without a constitutional amendment,” which he argued was mandated by the 21st Amendment. Upon this, Justice Ayesha Malik observed that “even if there is a [proven] personal relationship [with a military official], a civilian cannot be tried in military courts.” Justice Ijazul Ahsan remarked that the principles of internal relations, threats of war and threats to Pakistan's defence are fixed in the decision of the 21st Amendment case. Justice Yahya Afridi remarked that after the DG ISPR's press conference yesterday, the situation was “absolutely clear” and went on to call the AGP to the rostrum to clarify which law was being used against the accused. The AGP clarified that “the proceedings for the time being are carried out under Section 2(1)(d)(i) and Section 2(d)(ii) of the Official Secrets Act; the scope of which encompasses anyone who "seduces or attempts to seduce any person subject to this Act from his duty or allegiance to government" and has committed an "offence under the Official Secrets Act 1932" or “an offence under the Official Secrets Act, 1923”. “Section 2(d)(i) is applied to the accused that have some kind of a connection to the military,” the AGP said. Read More Fair Trial: Top court in a bind after DG ISPR presser CJ Bandial said that “the interesting thing is that the Official Secrets Act is not available with us and due to its non-availability, arrows are being shot in the dark”. Justice Ahsan remarked that the precedents of previous trials against civilians in military courts “cannot be ignored either” but in the same breath observed that “such instances in the past had different facts and different reasons”. The PTI's counsel furthered that "the majority decision of the 21st Amendment also imposes the same condition that [such trials can only be held] if there is war." "Article 175 (3) of the Constitution speaks of the three judicial structures while Articles 9 and 10 of the Constitution deal with fundamental rights. Notably, all these articles are separate but they are also interrelated," he maintained. Bhandari, however, maintained that "fundamental rights dictate that a judge appointed under Article 175(3) should conduct the trial. A court-martial trial of a civilian does not leave a good impression on the judicial system and no one has been pleased to allow it." He insisted that the accused should be given all rights, including the right to a fair trial, before being handed over to the military courts. Justice Ayesha Malik asked who will decide whether the persons are to be referred before extradition. She also observed that there is only one section of the Official Secrets Act, Section 59(4) that states that it applies to all persons. "Section 2(d)(i) would only apply to those individuals for whom the law was intended," she said. Justice Muneeb Akhtar remarked that if an emergency is not enforced and all rights are in place, then adherence to the Constitution is the only option. The petitioner's lawyer also brought to the court's attention that the first information report (FIR) "also does not mention the provisions of the Army Secrets Act". Justice Ahsan also remarked that "if the Act is read as a whole, it applies only when an act is done to benefit the [state's] enemies." Justice Bandial, however, observed that "the most important thing among officers is morale. Any action which lowers the morale of an army officer would benefit the enemy." Justice Naqvi later inquired whether a person could receive bail if they were convicted under the Official Secrets Act. Bhandari told the court that this was possible as the act was amended and anti-terrorism provisions were merged into the Protection of Pakistan Act 2017. CJ Bandial questioned how "the accusations were made without evidence" against the 102 civilians. "This matter is beyond understanding," he said. Justice Ahsan further noted that "the records show that the details of the accusations are not even available." Bhandari furthered that the arrest of the accused by army officers is also illegal. "Many facts are recognised," the lawyer said, "and from these facts, malicious intent can be induced." At one point, the CJP remarked that "it is futile to accuse a person without evidence." Addressing the AGP, he said that the court had sought information on the accused that "will be beneficial to all parents" concerned. During his arguments, AGP Awan said that he had provided all details, including the written records. "The details of the incident of May 9 after which the process of extradition of the accused started and most of the whole process is there in the rolls." Nonetheless, he underscored that some time would be required for completing the trial as it is not a summary trial. The CJ inquired if all legal requirements had been fulfilled when the accused were taken into custody. The AGP in response handed over a file to the CJP saying that it contained all the details of the 102 accused civilians and said that their parents could visit them weekly after filing a request for an appointment. Justice Afridi questioned how the accused had been nominated if they had not yet been charged. Also Read NCHR calls for upholding May 9 inmates’ basic rights Justice Malik also inquired why the details of the accused were being kept a secret. "Is there an issue with making their names public?" she asked noting that public access to the list of accused would put an end to the confusion and speculations surrounding the identities of the 102 civilians. AGP Awan requested the court to keep the details a secret, assuring the bench that the families of all arrested individuals would be contacted by the government within 24 hours. Justice Ahsan however remarked that there was still merit in making the list public as it would "put an end to speculations." However, Justice Yahya Afridi said it is better to establish their contacts with family before the publication of details. CJ Bandial also said that "it would be nice for the families to get information about the accused before Eid." AGP Awan requested the court for another hour's time to confirm if the list of the accused's names could be made public or not. Nonetheless, he stressed that basic amenities like food and healthcare were being provided to the arrested civilians. The CJ remarked that lawyers should be fully protected. "Imran Riaz is also missing," he said speaking of the journalist whose whereabouts remain unknown since his disappearance from Sialkot Airport on May 11. "Is he in your custody?" the CJ inquired. The AGP told the court that "neither any lawyer nor any journalist" is in the custody of military authorities but said that "we are providing full support for Imran Riaz's recovery." Earlier today, SC Bar Association President Abid Zuberi informed the court that he had also petitioned the court to become party to the case. In response to his request, CJ Bandial said that the court would “welcome good arguments after the application is numbered.” Later, the court adjourned the proceedings until the third week of July.

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