Plea filed in SC against trial of civilians under Official Secrets Act, Army Act

ISLAMABAD: The Supreme Court has been urged to declare that the trials of the civilians arrested, in light of the May 9 and 10 violent protests, under the Army Act and Official Secret Act are violative of Article 25 of the constitution, until and unless legal and reasonable guidelines are framed to structure the discretion not to arbitrarily try civilians under Army Act.

Members of civil society on Saturday filed a petition under Article 184(3) of the Constitution challenging the trial of civilians under the Pakistan Army Act 1952 read with Official Secret Act, 1923. The petition clarifies that the members of civil society are not associated with any political party, and have been striving continuously for the welfare of the citizens of Pakistan and the rule of law and protection of fundamental rights enshrined in the 1973 Constitution.

The Court was also asked to declare that the trials of civilian accused persons under the Army Act are violative of Article 10-A, 25, and 175 of the constitution until and unless the constitutional right to fair trial and due process is provided through an appropriate legislation.

The Supreme Court has been asked to declare that the trials of civilians accused persons under the Pakistan Act, 1952 read with Official Secrets Act, 1923 is relation to alleged offences recorded in the FIRs arising out of acts committed on May 9 and 10 are violative of Section 2(d)(ii) of Pakistan Army Act read with Section 3, 3A, 7 and 9 of Official Secret Act, and consequently, all such investigation and trials of the civilian accused persons under the Pakistan Army Act and all action taken in pursuant to it, are void ab initio and of no legal effect.

Civil liberties: SCBA concerned at trials under Army Act

It submitted that after granting the prayers the trials of all civilian accused under Army Act and Official Act be transferred to appropriate criminal courts of general and special jurisdiction for trials in accordance with the laws i.e. Criminal Procedure Code, 1898 and Anti-Terrorism Act, 1997.

The petitioners questioned whether the federal government’s and the Ministry of Interior’s notifications to call on the armed forces to “act in aid of civil power or their deployment in the Islamabad Capital Territory, Province of Punjab, Province of Khyber Pakhtunkhwa, and Province of Balochistan, without specifying justifiable reasons, geographical qualifications, and time boundedness, are in violation of Article 245, Constitution, 1973, as well as, Section 4, Anti-Terrorism Act, 1997, and consequently, continue to violate the fundamental rights under Articles 10A, 14, 15, 16, 17, 19, and 25, Constitution, 1973, of the Petitioners and the citizens of Pakistan?”

The petition mentioned various incidents recorded on May 9 and 10 and the days that have followed, including the arrests of Pakistan Tehreek-e-Insaf chief and other political leaders associated with the party.

The petitioners maintained that in the aftermath of May 9 and 10 protests total 7,424 people have been arrested. Out of the total, almost 3,700 people were arrested in Punjab by 21-05-23, 2,788 in Khyber-Pakhtunkhwa by 27-05-23, 500 people by Islamabad police by 14-05-23, and 86 people were arrested in Balochistan by 15-05-23.

The petition further brings on record allegations pointing to involvement of intelligence officers, examples of custody of detained persons being given to military authorities in cases where the FIRs hold no mention of offences under the Pakistan Army Act and the Official Secrets Act but were registered based on offences specified under the Pakistan Penal Code and the Anti-Terrorism law.

Moreover, the petition calls into question the bounds defined in the Pakistan Army Act and where an offence listed under the Officials Secrets Act can be tried under the former. It also specifies that offences covered by the Pakistan Penal Code and the Anti-Terrorism Act 1997 “mainly relate to bodily harm, rioting, arson, destruction of property, unauthorised entry, etc”.

The petition builds its argument citing various sections of the Pakistan Army Act and the Official Secrets Act while calling into question the applicability of the same on offences committed by citizens as well as political leaders and workers during May 9 and 10.

It contends that is should be obvious and apparent that “mere violent political protest” does not automatically bring offences committed by citizens under the ambit of the Pakistan Army Act and the Officials Secrets Act given the bounds defined in these respected laws as well as the absence of “essential criminal elements mens rea (the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused) and actus reas (the act or omission that comprise the physical elements of a crime as required by statute).

The petition further contends that not all offences specified under the Official Secrets Act are subject to military trials based on the legislation of both acts.

The petitioners have also prayed the court to restrain the federal government and the Interior Ministry from conducting military trials in relation to alleged offences committed on May 9 and 10.

Copyright Business Recorder, 2023