Govt says military trial of civilians 'appropriate' response to May 9 violence

The federal government informed the Supreme Court (SC) on Monday that conducting military trials of civilians allegedly involved in attacks on sensitive installations was an “apt and proportionate response” to the events of May 9.

The government made this argument in a brief statement submitted to the court by Attorney General for Pakistan (AGP) Mansoor Usman Awan. The SC will resume hearing challenges to the trial of civilians in military courts tomorrow (July 18).

Former chief justice Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and the PTI chief Imran Khan had filed petitions against the military trial of the civilians.

During a previous hearing, the AGP had apprised the apex court that 102 civilians, arrested from various parts of the country in the wake of the May 9 violence, were in the military’s custody.

In the statement submitted today, the federal government said that the events of May 9 were “neither localised nor isolated” and indicated a “premeditated and intentional attempt to undermine the country’s armed forces and inhibit the country’s internal security”.

It said the total damage came in at Rs2,539.19 million, including Rs1,982.95m in losses to military establishments, equipment, and vehicles.

“Thus, the mere fact that the offences under the provisions of the Official Secrets Act, 1923, triable under the Pakistan Army Act, 1952, have not been mentioned in some of the FIRs registered regarding the events of May 9 does not imply that offences under the Army Act cannot be made out from the contents of said FIRs.”

The federal government further argued that the petitions against the military trial of civilians were not maintainable before the apex court in its “original jurisdiction” under Article 184(3) of the Constitution.

The government said that the challenges raised in the plea could only be heard by the high courts in their original constitutional jurisdiction under Article 199.

Further, the government said that it was important to highlight that both the Army Act and the Official Secrets Act “not only predate the Constitution but were never, till date, challenged”.

“As such, all actions taken or being taken under the Army Act and the Official Secrets Act are fair exercise of power, in accordance with [the] law.”

The government argued that exercising the SC’s original jurisdiction over the petitions would be “judicially inappropriate” as it would deprive those tried under the provisions of the Army Act or the federation from invoking the apex court’s appellate jurisdiction.

“Without prejudice to the foregoing, the titled and connected petitions ought to be heard by the full court. One of the members of this bench (Justice Yahya Afridi) has also urged that the honourable chief justice may graciously consider reconstitution of the present bench and refer these petitions to the full court,” the statement said.

The government said that the trial of the accused persons, whether military personnel or otherwise, could not be challenged for violating fundamental rights. Highlighting the amendments to the Army Act, the government said that offences made triable “do not have a direct nexus with the proper discharge of duties by armed forces members”.

The government said that trials under the country’s army laws were not conducted against all the persons arrested but only those who “strictly fall within the offences stipulated in the Official Secrets Act.”

“Specifically, only those who ‘infiltrated a prohibited place’, or committed other like offences, within the meaning of Official Secrets Act, are being prosecuted, under the Army Act.”

At the same time, the government submitted that no new statutory regimes or legal instruments had been brought to try the accused. “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.”

Highlighting the procedure adopted by authorities for the military trial of civilians, the government said that court-martials and district trial courts had existed concurrently since Pakistan was created.

“Overview, of a legal and procedural matrix of court martial and civil/session courts reveal that both the said courts are not ‘at odds’, inter se; in fact, persons who are tried under the Army Act undergo a largely similar process in terms of law and procedure, in comparison with the ordinary civil/session court.”

The government said that trials under the Army Act were conducted “as closely as possible, per the orthodox practices of judicial proceedings, as set forth and established by the superior judiciary”.

“Recent episodes involving Shakeel Afridi and Kulbhushan Yadav are enough (and sufficient) evidence to indicate that foreign powers are constantly working to destablise the armed forces and weaken our national security.

“In these circumstances, and in light of the above mentioned submissions as assertions, the trial of those accused of violence against the armed forces, as well as personnel and establishments thereof, under the Amry Act, is an apt and proportionate response, in accordance with the existing (and prevalent) constititional framework and statutory regime of Pakistan,” the government said, urging the top court to dismiss the pleas.