Arrests over May 9 incidents: ICA challenges SC’s verdict against trial of civilians in military courts

ISLAMABAD: The Supreme Court has been urged to set aside its verdict that declared the trial of civilians, arrested in the aftermath of 9th May incident, by military courts null and void.

The caretaker Sindh government, on Thursday, filed an intra-court appeal (ICA) against the apex court short order dated October 23.

A five-member larger bench, headed by Justice Ijazul Ahsan and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Malik declared the trial of civilians, arrested in the aftermath of 9th May incident, null and void. It also ordered that they (civilians) be tried by criminal courts established under ordinary and/or special law.

The court by a majority of 4-1 also declared that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub-clauses (i) and (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect. Justice Ijaz, Justice Munib, Justice Mazahar, and Justice Ayesha held the sub-clauses of Section 2(1)(d) of the Act ultra vires the constitution, while Justice Yahya disagreed with them.

About a dozen petitions had challenged the trials of civilians by the military courts.

The Sindh government ICA said May 9, 2023 attacks appeared to be well coordinated and were meant to affect the morale of the Armed Forces of Pakistan. They were also aimed at creating a rift within the Armed Forces, thereby, undermining the command and control of the same.

The said attacks resulted in damage, destruction and grave loss to military installations and establishments. Furthermore, they resulted in injuries to military and other personnel.

The ICA contended that the assumption of “extraordinary jurisdiction” by a five-member bench is not tenable in the light of the test delineated in Article 184(3) of the constitution as well as the settled jurisprudence in relation to this area.

It submitted that the proper course would have been to direct the petitioners to approach the appropriate forum for the redressal of their alleged grievances. However, and with utmost respect and reverence, the bench proceeded to exercise its extraordinary jurisdiction which resulted in the passing of the impugned short order.

It said that the five-judge bench decided to assume jurisdiction and handed down the impugned short order by departing from the binding precedents and without giving any concrete basis for the same. The short order does not particularise the specific violation of the fundamental rights enshrined in the Constitution and/or on what basis have the provisions of the Army Act been declared to be unconstitutional.

It submitted that the petitioners did not challenge or bring before the Bench a new legislative instrument which had not been tested earlier on the anvil of the Constitution (or any infraction, inter alia, of any of the Fundamental Rights guaranteed therein) or which had not been interpreted earlier by the superior courts of Pakistan.

It further submitted that the decision rendered by a Court Martial is subject to the filing of a revision before the federal government or the Chief of the Army Staff, as the case maybe and thereafter, can also be challenged before the respective High Court(s) and the Supreme Court.

It is also germane to note that the superior courts have on a number of occasions intervened and granted relief in situations where it appeared to them that the rights of the accused stood compromised in any manner or that the procedure adopted during the trial suffered from any material lapses.

Thus, and in the presence of the safeguards, the bench should have dismissed the petitions and could have taken up the matter when it reached them in the usual course or scheme of things.

It is submitted that Article 175(3) of the Constitution has no application in the present matter. The Army Act is not the only legislative instrument which creates a special forum for adjudication of a distinct class of offences.

In the past, the federation as well as provinces have established various judicial and quasi-judicial forums entirely independent from the hierarchy of district judiciary.

Copyright Business Recorder, 2023