ISLAMABAD: Supreme Court Justice Muhammad Ali Mazhar on Monday raised concerns regarding the trial process for civilians if their cases were transferred from military courts to anti-terrorism courts (ATCs).
His inquiry came during the hearing of intra-court appeals challenging the military trials of civilians before a constitutional bench of the Supreme Court. The bench, led by Justice Amin Uddin Khan and including Justices Mazhar, Jamal Khan Mandokhail, Hassan Azhar Naqvi, and Naeem Afghan, heard arguments from civil society’s lawyer Faisal Siddiqi. Siddiqi argued that the core issue was not how 105 suspects were selected for military trials, but whether such trials were legally permissible at all.
Justice Amin noted that the transfer of suspects was a matter of record and inquired whether Siddiqi had challenged Section 94 of the Army Act. Siddiqi responded that at the time of the suspects’ custody, their crimes had not been determined, and that the extensive discretionary power under Section 94 had also been contested. He emphasized that while a commanding officer initiates the handover request under this section, their authority is unrestricted, unlike the prime minister, who operates within defined limits.
Justice Naqvi questioned whether police investigations were slower compared to military trials and asked if sufficient evidence was available at the time of the handover. Siddiqi clarified that the issue was not the presence of evidence but the absolute authority in transferring suspects.
Justice Mandokhail then asked whether an ATC had the power to reject a handover request, to which Siddiqi affirmed. Justice Amin remarked that such a defense could have been pursued before the ATC or in an appeal.
Meanwhile, Justice Mazhar inquired whether the court had ruled on the commanding officer’s request without informing the suspects. Justice Mandokhail pointed out that Section 94 applies only to those under the Army Act and that after the ATC’s decision, the suspects fell under this law. He added that ATCs also had the power to reject a commanding officer’s request.
Siddiqi argued that the decision to conduct a court-martial should have been made before the suspects’ custody, questioning how a handover could occur without a prior court-martial decision. Justice Naqvi asked whether the commanding officer’s request for custody included any justification, to which Siddiqi responded that no reason was mentioned. However, Justice Afghan countered, stating that the request cited offences under the Official Secrets Act.
Justice Mandokhail highlighted that the procedure for registering a complaint under the Official Secrets Act is outlined in the Code of Criminal Procedure, requiring a magistrate to record a statement before deciding on an investigation. Siddiqi maintained that such complaints should be formally filed and that only the federal government has the authority to lodge complaints under the Official Secrets Act, not private individuals.
Justice Mazhar then posed a crucial question: “If cases are transferred from military courts to ATCs, at what stage would the trial begin? Would it start anew, or would it consider evidence recorded during military proceedings?”
Justice Amin further asked whether invoking the doctrine of past and closed transactions would validate military trials. Siddiqi responded that the military trials were challenged under Article 245 of the Constitution. Justice Amin noted that Article 245 was not in effect on May 9 but had been implemented when the petitions were filed.
Following these discussions, the constitutional bench adjourned the hearing on intra-court appeals against military trials of civilians until the next session.
