Appeal against SC verdict in ‘military court trial case’ filed by federal govt

ISLAMABAD: The federal government told the Supreme Court that the events of 09-05-2023 indicate a premeditated and intentional attempt to undermine the country’s armed forces and inhibit the country’s internal security.

The federal interim government on Friday through Attorney General for Pakistan Usman Mansoor Awan filed an intra-court appeal against the Supreme Court’s order on military courts dated October 23. A day ago (Thursday) caretaker government of Sindh had challenged the apex court’s short 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 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 the ordinary and/or special law.

Military trials of civilians declared ‘null and void’

The appeal mentioned that the challenges raised in the petitions fall squarely within the High Courts’ original constitutional jurisdiction despite the bar contained in clause (3) of Article 199 of the Constitution. “This Court (SC) has held, on multiple occasions that Petitions under Article 199 of the Constitution are maintainable notwithstanding the bar contained in Article 199(3) on grounds of malafide, coram non judice and jurisdictional challenges.”

The High Courts have been held competent to judicially review orders transferring cases for trial under the Army Act on the grounds of coram non judice, malafide and lack of jurisdiction.

The federal government contended that the trial of accused persons – whether military personnel or otherwise – cannot be challenged for being in violation of any of the fundamental rights including the rights enshrined in Articles 9, 10-A and 25 of the Constitution.

It; however, pointed out that the trials under the Army Act were not sought to be conducted against all persons arrested, who were involved in violence on 09-05-2023, 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 Official Secrets Act, are being prosecuted, under the Army Act,” it added.

The government submitted that no new statutory regime or legal instrument has been brought about to try such individuals. Instead, the individuals involved in damaging, destroying and, for that matter, breaking and entering various military establishments are being tried, under the applicable (and already existing) statutory regime of Army Act, read with relevant provisions of the Official Secrets Act.

It further submitted that fundamental rights are not applicable to Section 2 (1) (d) read with 59(4) of the Army Act. Thus, even if the separation of judiciary from the executive informs the construction of fundamental rights, the said fundamental rights are not applicable to trials under the Army Act to the extent that the said trials relate to the proper discharge of duties of the members of the armed forces, which is the case in the instant petitions.

The federal government also submitted that any judicial function exercised under the Army Act does not fall within the scope of the term “judiciary” as used in Article 175 (3) of the Constitution. Thus, courts under the Army Act are not required to be separated from the executive.

“Courts under the Army Act have been explicitly excluded from the definition of “persons” in Article 199 (5) of the Constitution, i.e., they are not amenable to the Constitutional jurisdiction of High Courts under Article 199 (except for reasons of malafide, coram non-judice and without jurisdiction).

Further, these courts are not under the supervision and control of High Courts in terms of Article 203 of the Constitution.“

The AGP stated that in light of the Supreme Court’s order declaring Supreme Court Practice and Procedure Act, 2023, intra vires the constitution the constitution of the bench in Constitution Petition No 24/ 2023 is in contravention to the procedure prescribed under section 2 and 3 of this Act.

Therefore, the impugned order/ judgment is liable to be set aside for having been rendered coram non judice and thus, a nullity in the eyes of the law.

The petitions are not maintainable before this Supreme Court in its original jurisdiction under Article 184 (3) of the Constitution. This Court has dubbed its original jurisdiction under Article 184 (3) of the Constitution as “extraordinary”.

Similarly, it has held that “[….] when remedies and forums are available under the ordinary law, then those forums are to be exhausted in the normal course and resort should not be made to the extraordinary jurisdiction of the Supreme Court under which direct Constitutional petition can be filed,” submitted the federal government.

Copyright Business Recorder, 2023