March 3, 2025
By Rana Malhi
ISLAMABAD
“The real issue is not how the 105 accused individuals were selected for military trials, but whether the law permits such trials,” said lawyer Faisal Siddiqui, during a Supreme Court hearing for intra court appeals against the decision to try civilians in military courts. The proceedings, held on Monday, were heard by a seven-member constitutional bench, headed by Justice Amin-ud-Din Khan. Siddiqui was representing civil society in the case.
Justice Amin-ud-Din Khan remarked that the matter of handing over the accused was related to records and inquired whether Section 94 of the Army Act had been challenged.
Siddiqi responded that the unlimited discretionary powers under Section 94 had indeed been challenged because the officer deciding the accused’s military handover possessed unrestricted authority. Justice Hassan Azhar Rizvi questioned whether the police investigation was slow while the investigation by the military was quicker. He also asked whether any material was present at the time of the handover.
Faisal Siddiqi maintained that the core issue is who holds the absolute authority to hand over the accused.
Meanwhile Justice Jamal Mandokhail asked whether the Anti-Terrorism Court (ATC) had the authority to reject the request for the accused’s handover at which Faisal Siddiqi responded that the court does have this authority.
However, Justice Amin-ud-Din Khan stated that this defense could have been raised by the accused before the ATC or in an appeal.
Justice Muhammad Ali Mazhar remarked that the ATC did not even issue notices to the accused and made a decision solely based on the commanding officer’s request.
Justice Jamal Mandokhail noted that Section 94 applies to those already subject to the Army Act, while Faisal Siddiqi argued that the decision to conduct a court-martial should have been made before handing over the accused.
Justice Hassan Azhar Rizvi asked whether the commanding officer’s request included reasons for the handover. Faisal Siddiqi replied that no reasons were mentioned. However, Justice Naeem Akhtar Afghan stated that the request indicated the accused were charged under the Official Secrets Act.
Filing a case under OSA
The court also discussed the procedure for filing a complaint under the Official Secrets Act (OSA). Justice Jamal Mandokhail stated that under this Act, complaints are submitted to a magistrate, who then decides whether an investigation should proceed.
However, Faisal Siddiqi argued that it is an established principle that only the federal government could file a complaint under OSA, not a private individual.
The court also debated Article 175 and executive powers.
Faisal Siddiqi argued that if his position was accepted, it would nullify the trials, not the law itself. He added that cases where sentences remain would be transferred to the ATC, while cases where sentences had been executed would be considered “past and closed transactions.”
Justice Muhammad Ali Mazhar asked where the trials would resume if cases were transferred from military courts to regular courts. Faisal Siddiqi pressed upon the point that whatever the case may be military trials could not be validated.
During the hearing, Faisal Siddiqi stated that military trials were challenged in the Supreme Court due to the application of Article 245. However, Justice Amin-ud-Din Khan pointed out that Article 245 was not in force at the time of the May 9 incidents but was enforced when the petitions were filed.
The Supreme Court adjourned the hearing on hearing until Tuesday when Siddiqi is expected to continue his arguments.