The caretaker Punjab government filed an appeal in the Supreme Court (SC) on Tuesday against the decision of a five-member bench that had declared the trials of civilians under the Pakistan Army Act, 1952 as unconstitutional.
In the widely praised Oct 23 ruling, the bench, comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik had declared that trying civilians in military courts for their alleged role in attacks on army installations during the riots that followed PTI chairman Imran Khan’s arrest were ultra vires the Constitution.
The bench had also emphasised that the cases of the suspects involved in the vandalism would proceed before criminal courts.
The SC had further declared Section 2(1)(d) of the Army Act, which elaborates on persons subject to the Act, to be in violation of the Constitution and “of no legal effect”. The court also declared Section 59(4) (civil offences) of the Act to be unconstitutional. However, Justice Afridi had disagreed with striking down the sections.
The Punjab government’s petition comes a day after the defence ministry moved an intra-court appeal challenging the Oct 23 verdict. Previous petitions were also moved by the federal, Balochistan and Khyber Pakhtunkhwa governments.
The petition, named ex-chief justice Jawwad S. Khawaja, one of those who successfully petitioned the top court against the military trials of civilians, the federation of Pakistan through the secretaries of Ministry of Defence and Law and Parliamentary Affairs, and the provinces of Sindh, Balochistan and KP as respondents.
The petition has not yet been accepted for hearing.
The plea said that the events of May 9 indicated a “premeditated and intentional attempt to undermine the country’s armed forces and inhibit the country’s internal security”.
It said that the petitions against the military trials of civilians were not maintainable before the SC in its original jurisdiction under Article 184(3) of the Constitution. It said the challenges raised in the original petitions could have been adjudicated by the high courts in their original constitutional jurisdiction under Article 199.
It further said that the SC verdict was “not sustainable” as it failed to set aside or decide the fate of orders passed by anti-terrorism courts under Section 549 (delivery to military authorities of persons liable to be tried by court-martial) of the Code of Criminal Procedure (CrPC).
It also contended that the trial of accused persons, whether military personnel or otherwise, could not be challenged for being in violation of any of the fundamental rights, including the rights enshrined in Articles 9 (protects the life and liberty of all citizens), 10-A (right to fair trial) and 25 (right to education).
It further said that offences under Section 2(1)(d) included those under the Official Secrets Act, which related to works of defence or naval, military or air force affairs, “which may be prejudicial to safety, interest, defence, sovereignty and sanctity of Pakistan […].”
The petition contended that Sections 2(1)(d) and 59(4) of the Army Act were “constitutionally insulated from a challenge on the touchstone of fundamental rights and the impugned order, to the extent that it has failed to appreciate this, has erred in law”. Therefore, the SC verdict was liable to be set aside, the petition said.
It argued that trials under the Army Act were not sought to be conducted against all person arrested but “only those concerned individuals who strictly fall within the offences stipulated in the Official Secrets Act. Specifically, only those individuals who infiltrated a ‘prohibited place’, or committed other like offences within the meaning of the Official Secrets Act, are being prosecuted under the Army Act.”
The petition urged the court to allow the appeal, set aside the verdict by the five-member bench and “dismiss the petitions with costs”.