The Supreme Court’s Constitution Bench (CB) has questioned the status of military trial against May 9, if their cases are transferred to anti-terrorism courts (ATCs).

A seven member CB resumed the hearing of the government’s intra court appeals against SC’s previous order canceling the trial against civilians in military courts.

Representatives of the petitioners of civil society, lawyer Faisal Siddiqi claimed that if the Court accepted his position, Pakistan Army Act, 1952, would remain intact, but the lawsuits of 9 May, accused would be canceled. He explained that indefinite cases would move to ATCs, while cases where sentences had already been executed would be considered “earlier and closed transactions”

Justice Muhammad Ali Mazhar asked if ATCs would carry out fresh litigation or rely on military legal certificates. CB leader Justice Aminuddin Khan questioned whether the declaration of military court judgments “past and closed” would validate the trials.

In response, Faisal Siddiqui declared that the military trial was contested in the Supreme Court due to the application of Article 245 of the Constitution.

Article 245 outlines the role of armed forces in defending the country and helping civilian authorities. Justice Aminuddin Khan pointed out that Article 245 was not in force on May 9, 2023. It was invoked when the petitions were filed.

Earlier, Faisal Siddiqui said the question was not how the 105 accused individuals were elected to military trial, but rather whether the law allowed it.

Justice Aminuddin Khan noted that the question of transferring the defendant was a matter of registration. He asked if the client for Siddiqi challenged section 94 of the Pakistan Army Act, 1952.

The lawyer replied that their crimes were not determined at the time of the transfer. “We have also challenged the unlimited discretionary powers in accordance with section 94 of the Act,” he added.

Section 94 of the Pakistan Army Act, 1952, says that when a criminal court and a court of martial arts have jurisdiction with regard to a civil offense, it must be in the discretion of the prescribed officer before the lawsuit is to be introduced.

“If this officer decides to be introduced to a court match, [it shall be in the discretion of the prescribed officer] To order the accused person to be detained in military custody, ”it states.

The lawyer claimed that the officer who decided to transfer the cases against the defendants to military courts had unlimited authority, while even the powers of the Prime Minister are not unlimited. “The authority with regard to the transfer of defendants should be structured,” he said.

Justice Hassan Rizvi asked if police investigation was slower than the military’s and whether there was any significant evidence at the time of the transfer.

Faisal Siddiqui replied that the availability of material evidence was not the question. According to him, the root of the problem was the unlimited power to transfer accused individuals. The commander requests the transfer according to section 94, he added.

Justice Jamal Khan Mandokhail asked if the ATCs had the authority to reject the transfer request from commanding officers. The lawyer said the ATCs actually had the power to reject such a request.

Justice Aminuddin Khan noted that this defense could have been adopted by the defendants in the ATC or under an appeal. Justice Muhammad Ali Mazhar pointed out that ATC had not even issued messages to the defendants and had decided the case based solely on the commander’s request.

Justice Mandokhail stated that section 94 applies to those who fall into the Pakistan Army Act’s Jurisdiction, 1952. When the ATC made its decision, the defendant was subject to the law when ATC had the power to reject the commander’s request, he added.

Siddiqui claimed that the decision on court match should have been made before handing over the defendant. If no decision had been made on a judicial match, then how could the transfer of defendants be justified, he asked.

Justice Hassan Rizvi asked if the commander’s request gave the reasons for the transfer. The lawyer replied that no reasons were mentioned in the request.

However, Justice Naeem Akhtar Afghan disagreed with the requirement that the request included reasons that specified that the defendants were indicted under the official secret law, 1923.

Justice Mandokhail noted that the procedure for filing a complaint under the official secret law, 1923, was clearly described in the Code of Criminal Procedure (CRPC).

“Such a request must be submitted to a magistrate that would record declarations and decide whether an investigation was eligible,” he added.

Faisal Siddiqui claimed that such a request could also be submitted in the form of a four. He said it was found that only the federal government could file a complaint under the official secret law and that a private person could not do so.

“Complaints under the law of official secrets could also be made in accordance with the army rules,” he said.

Justice Mandokhail noted that according to the Army rules there must be first, but even for an investigation to begin, there must be a formal complaint.

He also questioned whether the director’s discretion still remained under Article 175. “Article 175 eliminates the question of discretionary power completely,” he said.

Article 175 of the Constitution deals with the power separation between the judiciary and the exercise. It emphasizes that the judiciary must function independently and is not affected by the executive branch. CB resumes to hear the case today.