Trial of civilians by military courts: SC urged to begin proceedings against secy Ministry

ISLAMABAD: The Supreme Court has been urged to initiate contempt proceedings against the secretary Ministry of Defence for not implementing its verdict against the trial of civilians by the military courts.

The members of various civil society groups, on Monday, filed a contempt petition urging to initiate proceedings of contempt of court against retired Gen Hamooduz Zaman Khan for wilful and deliberate violation of the apex court order dated 23rd October 2023.

The petition, filed through advocate Faisal Siddiqui, stated that the alleged contemnor is responsible for implementation of the directions passed in the Order, because he heads the relevant ministry which has to issue the directions for the transfer of custody of persons mentioned in Para (ii) of the Order.

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, on 23-10-23, declared that military trials of the civilians for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9, unconstitutional, illegal, and of no legal effect.

It by a majority of 4-1 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. The bench had also emphasized that the cases of the suspects involved in the vandalism would proceed before criminal courts.

The caretaker federal government, Defence Ministry, Ministry of Interior, and Balochistan, Khyber-Pakhtunkhwa, and the Punjab interim governments have filed the intra-court appeal (ICA) against the five-member bench’s order. The Sindh interim government denied filing the appeal.

The petitioners submitted that the direction passed in Para (ii) of the Order dated: 23.10.2023, is unambiguous as it holds that the persons who are accused in relation to events arising from and out of 9th and 10th May 2023, shall be tried by criminal courts of competent jurisdiction.

It is self-evident that an integral part of this declaration and direction is that the custody of the said persons as identified in the list, provided to the SC, must be handed over to the criminal courts so that their trial may commence without delay.

The continuing detention of these persons, with the military authorities is unconstitutional and illegal. Since the Court had declared Section 2(1)(d)(i) and (ii) and Section 59(4) of the Pakistan Army Act, 1952, as unconstitutional and ultra vires of the Constitution, 1973, therefore, any continuing detention pursuant to the Section 2(1)(d)(i) and (ii) and Section 59(4) is similarly unconstitutional and ultra vires of the Constitution.

Faisal Siddiqui stated since multiple ICAs filed against the order dated: 23.10.2023 by the respondents and non-respondents, are not numbered or fixed for hearing,hence, the 23rd October order is still in the field and is binding upon the parties, including the alleged contemnor.

It is also settled law that until a stay is granted, mere filing of appeal does not automatically operate as a stay of the order by the Court, he added.

Copyright Business Recorder, 2023