- Judge Mandokhail asks if the ATC had the power to deny custody.
- Judge Amin wonders about the judicial authority on cases of cases.
- The court adjourns the hearing on civilian civil trials until tomorrow.
Islamabad: Judge of the Supreme Court Muhammad Ali Mazhar inquired on the stage on Monday from which civilians would resume if the cases were transferred from a military court to an anti-terrorism court (ATC).
The request was raised during the hearing of intra-loud calls against the military trial of civilians before a constitutional bench in the Superior Court.
The bench, led by judge Judge Uddin Khan and comprising other judges, notably judge Mazhar, judge Jamal Khan Mandokhail, judge Hassan Azhar Naqvi and Judge Naeem Afghan, heard the arguments from civil society lawyer, Faisal Siddiqi, who argued that the basic question was not suspects.
Judge Amin noted that the transfer of suspects was a matter of file and asked if the lawyer had challenged article 94 of the army law.
Siddiqi replied that at the time of keeping the suspects, their crimes had not yet been determined and that the unlimited discretion granted under article 94 had also been disputed.
He argued that a commander initiates a transfer request under article 94 and that the officer making the decision has an unlimited authority, unlike the Prime Minister, who has limited powers. He stressed that there should be a structured framework for such powers.
To this, Judge Naqvi wondered if the police investigations were slower compared to military trials and asked if sufficient evidence existed at the time of the transfer of the suspects. Siddiqi replied that the presence or absence of evidence was not the problem, but rather the absolute authority in the transfer of suspects.
Here, judge Mandokhail asked if an ATC had the power to reject a transfer request. To which Siddiqi responded in the affirmation. Judge Amin then pointed out that such a defense on behalf of the suspects could have been prosecuted before the ATC or in a call.
Meanwhile, judge Mazhar asked whether the court had decided to request the commander without informing the suspects.
To this, judge Mandokhail stressed that article 94 only applies to those of the Army Act, and after the Decision of the ATC, the suspects fell under said law. He pointed out that the ATC also had the power to reject the commander’s request.
Siddiqi argued that the decision to carry out a martial court was supposed to be made to the guard of the suspects, wondering how a transfer could occur without a decision of the previous court martial.
Here, Judge Naqvi asked if the request for a guard by the commander provided reasons. To this, Siddiqi informed the bench that no reason had been mentioned in the commander’s request.
However, the Afghan judge intervened, saying that the reasons had been exposed in the request, specifically citing offenses under the official secret law.
Judge Mandokhail noted that the procedure to record a complaint under the official secret law is clearly described in the Code of Criminal Procedure, which obliges a magistrate to record a declaration and to decide if an investigation is necessary.
Siddiqi argued that the complaint could appear in the form of a case and that only the federal government can file a complaint under the official secret law. Any private individual does not have the power to file such a request, he added.
It was the stadium where judge Mazhar raised the key question: “If the cases are transferred from the military courts to the ATC, how will the trial begin?”
Judge Amin then asked whether to invoke the doctrine of past and closed transactions would validate the military trial. Siddiqi replied that the military trial was challenged under article 245 of the Constitution.
To this, the judge stressed that article 245 was not in force on May 9 but had been implemented when the petitions were deposited.
Following these discussions, the Constitutional bench postponed the hearing on intra-core calls against civilian military trials see you tomorrow.
