Constitutional Bench Cites Ahmad Faraz’s Military Detention in Appeals Against Civilian Military Trials

ISLAMABAD: The military detention of renowned poet Ahmad Faraz during Gen Ziaul Haq’s martial law was referenced on Thursday during a hearing before the Constitutional Bench (CB), which is reviewing appeals against the military trials of civilians. Justice Naeem Akhtar Afghan noted that in the current era of social media, the poet’s defense strategy may not have been applicable.

“Ahmad Faraz had argued before the Lahore High Court (LHC) at the time of his arrest that he had no other means to communicate his poetry, but such a plea would not hold weight in the age of social media,” remarked Justice Afghan in a lighter vein.

The seven-member bench, headed by Justice Aminuddin Khan, is adjudicating a series of intra-court appeals challenging the five-judge decision of October 23, 2023, which nullified the military trials of civilians involved in the May 9 unrest.

Justice Afghan highlighted that during the LHC proceedings, Faraz had contested authorship of the poem in question. However, Justice Muhammad Afzal Zullah, who presided over the LHC bench, observed that the poet had penned a verse reflecting the sentiments of a soldier.

The reference to Faraz’s case emerged when Faisal Siddiqi, representing civil society, cited the 1977 LHC ruling to support his argument that an individual only becomes subject to the Pakistan Army Act (PAA) 1952 once formal charges are read out before being handed over to military authorities.

Faraz was charged with reciting a poem to an army officer and later providing a typed copy with the alleged intention of inciting rebellion. However, the LHC ruled that he was not subject to the PAA and ordered his immediate release.

Justice Musarrat Hilali, reflecting on the case, questioned which poem had led to Faraz’s imprisonment, noting that many of his works have been memorized by admirers. She also recalled her early years as a lawyer, stating that she would often challenge judicial decisions vigorously.

“I used to claim that judges were like truck drivers, signaling in one direction but turning the other way,” she said, suggesting that the counsel take note of her remark.

In response, Justice Syed Hasan Azhar Rizvi humorously inquired whether she had ever driven a truck. Justice Hilali affirmed, adding that her father was a freedom fighter who had spent much of his life in prison. She recounted an instance where one of her father’s poems was recited at a Pashtun jirga posthumously, leading to the arrest of the individual who read it.

The discussion then shifted to the legal intricacies surrounding the transfer of accused individuals to military custody. The counsel cited applications from commanding officers requesting such transfers, which began by asserting that an initial investigation pointed to an offense under the Official Secrets Act, 1923.

These statements, the counsel argued, indicated that investigations were incomplete, yet the anti-terrorism court (ATC) proceeded with the transfer. He contended that by allowing the transfer, the ATC’s administrative judge had prematurely declared the accused guilty, despite the ongoing investigation.

Under Section 59(1) of the PAA, only military officers can be placed under military custody if charged with murder or other crimes, Siddiqi asserted. He further argued that a civilian accused could only be detained under the PAA once formal charges were framed, and court-martial proceedings could not commence beforehand.

The Constitutional Bench will resume hearing the case on Monday.