On Wednesday, Advocate Faisal Siddiqui argued before the Supreme Court’s Constitutional Bench that proper legal procedures must be followed before civilians accused of involvement in the May 9 attacks on military installations can be transferred to military authorities. He emphasized that this transfer violated multiple legal provisions, including Section 549 of the Criminal Procedure Code (CrPC), Section 59(4) of the Pakistan Army Act (PAA) 1952, and sections of the Anti-Terrorism Act (ATA) 1997.
During the hearing of intra-court appeals against the Supreme Court’s October 23, 2023, ruling, which invalidated the trial of civilians by military courts for their involvement in the May 9 violence, Siddiqui contended that the transfer violated the constitutional rights to a fair trial under Articles 9 and 10A. He argued that the issue at hand was not about the accusations themselves but about determining the appropriate forum for trial.
Siddiqui pointed out that civilians must first be formally charged with the specific offences they are accused of before their custody can be transferred for court-martial. He stated that the failure to do so made the transfer illegal. The counsel further argued that the Constitutional Bench had the authority to declare these military trials illegal without overturning key sections of the Pakistan Army Act (PAA), specifically Sections 2(1d)(i) and (ii). He also challenged the discretionary powers granted to military officers under Section 94 of the PAA, claiming they were legally invalid.
He insisted that the application for transferring the case to a military court should first go before a magistrate who would formally charge the accused before transferring them to military authorities. Justice Jamal Khan Mandokhail, part of the seven-judge panel, pointed out that if charges were framed, the accused should have the right to appeal before a high court.
Siddiqui also argued that the accused should be able to challenge their transfer to military authorities, especially if their offences were related to the Official Secrets Act (OSA). Justice Musarrat Hilali remarked that charges are typically framed after the police or relevant agency submit a challan following an investigation.
The counsel also noted that three of the five judges who issued the October 23 ruling had all agreed that civilians could not be tried in military courts. He argued that military trials under the PAA and OSA were beyond jurisdiction and legally flawed, violating the accused’s constitutional rights under Articles 10A and 25. Siddiqui concluded by calling for the transfer of all civilian trials under the Pakistan Army Act to general and special criminal courts, emphasizing that the dispute was about identifying the proper venue for the trials, not the criminal charges themselves.
