ISLAMABAD: A larger bench of the Supreme Court on Thursday initiated proceedings on identical pleas against the trial of civilians in military courts for their alleged involvement in military installations during May 9 protests.
Chief Justice of Pakistan (CJP) Umar Ata Bandial had constituted a nine-member larger bench to hear petitions separately filed by Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and Pakistan Institute of Labour Education and Research (Piler) Executive Director Karamat Ali.
Besides the CJP, Senior Puisne Judge Justice Qazi Faez Isa, Justice Sardar Tariq Masood, Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik and Justice Mazahir Ali Naqvi are part of the larger bench.
Ex-CJP’s plea
Former CJP Khawaja filed a petition under Article 184(3) of the Constitution, challenging the trials of civilians through military courts.
The Federation of Pakistan has been made respondent through the law, defence secretaries, and provincial chief secretaries have been made respondents in the plea.
The former chief justice submitted that the instant petition does not seek to support or attack any political party or institution, adding that it raises an important constitutional question involving fundamental rights that requires adjudication in the present circumstances.
“The petitioner has no personal interest in this case and the relief sought is for the benefit of all citizens regardless of political affiliation,” Justice (retd) Khawaja said in the petition, submitted through his counsel Khawaja Ahmad Hosain.
The former CJP prayed the apex court to declare that when ordinary courts are functioning, court martial of civilians by military courts is unconstitutional.
PTI chief’s petition
In his plea, the deposed prime minister urged the top court to declare arrests, investigation, and trial of civilians in peacetime under the Army Act and the Official Secrets Act against the Constitution.
The federation, Prime Minister Shehbaz Sharif and other ruling alliance leaders, including Nawaz Sharif, Maryam Nawaz, Asif Zardari, Bilawal Bhutto, and Maulana Fazlur Rehman were made respondents in the petition filed through advocate Hamid Khan.
Referring to the deployment of army troops in aid of civil authorities, the PTI chief implored the court to declare the imposition of Article 245 invalid and bar the authorities from arresting party workers and leaders — who are allegedly involved in ransacking state installations following his arrest on May 9.
The petition also requested the apex court to stop the trial of civilians accused of attacking defence installations in military courts, terming it a violation of fundamental rights.
Khan also accused Pakistan Muslim League Nawaz (PML-N) chief Nawaz Sharif and his daughter Maryam of creating rifts between PTI and the military by “propagating” that the latter wanted to appoint the army chief of his choice.
Moreover, the petition also prayed to the SC to take action against the “forced separation” of PTI leaders as many leaders, including Fawad Chaudhry, Shireen Mazari and others, parted ways with Khan over May 9 riots.
It further asked the apex court to hold an “impartial judicial inquiry into events leading up to the horrendous and gory events of May 9, 2023”.
Ahsan’s petition
Meanwhile, senior lawyer Ahsan challenged the trial of May 9 rioters in military courts, contending in a constitutional petition that such trials cannot take place without a constitutional amendment.
The legal expert raised a number of questions on the trial of civilians under the Pakistan Army Act, 1952 and the Official Secret Act, 1923, urging the court to declare the trials violative of Article 4, 9, 10A and 175 of the Constitution.
“Such trials for offences allegedly committed during the May 9 incidents and covered under the various FIRs [first information reports] …are ultra vires the Constitution, void ab initio and of no legal effect.
“The decision of the federal government dated May 19 rubber-stamping the decision of the Corps Commanders Conference dated May 15 to conduct such trials is liable to be set aside,” it said.
He contended that the parliament can only take the decision to try civilians for essentially civilian offenses during peacetime through a constitutional amendment and not through a resolution “which has no effect in law”.
The petitioner said the apex court ruled that the military courts formed after the 2016 attack on Army Public School (APS) in Peshawar, through the 21st Constitutional Amendment were for a limited time — under a sunset clause.
“This special dispensation was never intended to be a permanent feature of the Constitution. It finally ended in January 2019 upon the termination of the dispensation as extended by the 23rd Constitutional Amendment,” it said.
Moreover, Ahsan requested the court to declare sections 2(1)(d)(ii) and 59(4) of the Pakistan Army Act, 1952 “ultra vires” the Constitution and declare Section 94 of the Pakistan Army Act, 1952 and the 1970 Rules as a direct violation of Article 25 and 175.
Ali’s plea
Five prominent civil society members from across the country — Piler Executive Director Karamat Ali, former Karachi Metropolitan Corporation administrator Fahim Zaman Khan, Aurat Foundation director Mahnaz Rahman, educationist Prof Dr AH Nayyar, and clinical psychologist and educationist Syed Zulfiqar Hussain Gilani — had also moved the court.
The petitioners demanded the court stop the trials of civilians under the Pakistan Army Act 1952 and the Official Secrets Act 1923.
The plea mentioned that such probes and trials are against sections 2(d)(ii) and 59(4) of the army act read with sections 3, 3A, 7, and 9 of the secrets act.
The Federation of Pakistan, through secretaries of law and justice, interior, defence, chief secretaries of Punjab, Khyber Pakhtunkhwa and Balochistan have been made respondents in the plea filed through senior counsel Faisal Siddiqi.
The plea also urged the top court to permanently restrain the respondents from conducting any trial of civilian accused persons under the army act and secrets act concerning May 9 and 10 offences.
This is a developing story and is being updated with more details.
