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Sunday June 23, 2024

Military courts trial doesn’t curtail rights under law, govt tells SC

The government asks apex court to dismiss pleas challenging military trial of civilians

By Sohail Khan
July 18, 2023
Supreme Court of Pakistan. — Supreme Court website
Supreme Court of Pakistan. — Supreme Court website

ISLAMABAD: The federal government on Monday requested the Supreme Court to dismiss all the petition challenging the trial of civilians in military courts, saying that violence against military and vandalism of army installations was a direct attack on the national security of Pakistan, and was therefore prejudicial to security, interests and defence of Pakistan.

In a reply, filed through Attorney General Mansoor Usman Awan, the government, while defending the military trials, submitted that the Armed Forces, under Article 245 of the Constitution, have been charged with the obligation to defend Pakistan against external aggression or threat of war, adding that a trial by court martial does not curtail the rights guaranteed under law,.

A six-member larger bench of the apex court headed by Chief Justice Umar Ata Bandial will take up today (Tuesday), identical petitions, challenging the trial of civilians in military courts under Army Act 1952. Other members of the bench included Justice Ijazul Ahsen, Justice Yahya Afridi, Justice Munib Akhtar, Justice Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik.

The government submitted that the incidents of May 9 involve targeted attacks on several military installations and establishments across the country in an organised and coordinated manner. The events of 9 May indicate a pre-mediated and intentional attempt to undermine the country’s armed forces and inhibit the country’s security, the reply added.

The government further submitted that the issues involved in the petitions are of critical importance to the national security and integrity of Pakistan.

“As such, to create deterrence in respect of such attacks, our constitutional framework allows perpetrators of such vandalism and violence to be tried under the provisions of the Army Act,” said the government reply.

It was further submitted that recent episodes involving Shakeel Afridi and Kulbhushan Jadhav are enough (and sufficient) evidence to indicate that foreign powers are constantly working to destabilise the Armed Forces and weaken our national security.

“In these circumstances, the trial of those accused of violence against the armed forces, as well as the personnel and establishments thereof, under the Army Act, is an apt and proportionate response, in accordance with the existing (and prevalent) constitutional framework and statutory regime of Pakistan.” the reply added.

The federal government further submitted that the law, including the Army Act and the Army Rules, provides every possible protection to the fair trial rights of the accused person.

This court has already found favourably regarding the procedural and substantive protections provided for trial under the Army Act in, inter alia, the F B Ali and Said Zaman Khan cases,” said the reply.

The reply further submitted that several judicial and quasi-judicial forums, independent from the ordinary district courts (civil as well as criminal courts), have been created under authority of various Acts, in a manner similar to Army Act.

“Further, many such judicial and quasi-judicial forums have special procedural and legal requirements, owing to policy and strategic reasons, and the same ipso facto does not make such forums, in any manner, violative of the principle of due process of law.” the reply added.

The federal government contended that a trial by court martial does not curtail the rights guaranteed under law, which in any manner may be prejudicial, violative, or contrary to the principles of natural justice, due process of law, and the right to fair trial.

“As such, court martial merely provides for an efficient judicial structure to entertain, in accordance with law, offences under the Army Act, related to security of personnel and establishments of the Armed Forces of Pakistan,” says the reply.

It was further submitted that the trials, under the Army Act, are not being 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,” the reply added.

The government prayed the apex court to dismissed the connected petitions. It is pertinent to mention here that on last hearing held on June 27, the court declined the petitioner’s request to stay the proceedings of the military trial of civilians after the attorney general assured the court that no proceedings would be initiated till the final decision of the court.

The AG told the court that the trial of civilians in military courts had not started as he said the investigation in cases was still in progress.

He further submitted that he would file the relevant documents and his written synopsis before the next date of hearing. The AG had also provided the court, the list of 102 civilians who are currently in the military custody along with the details of the stations that they are being kept in.

CJP Bandial also remarked that it was expected that the military courts would not commence the trials till the final decision of the court.

Former prime minister and Pakistan Tehreek-e-Insaf Chairman Imran Khan, Barrister Aitzaz Ahsan, former chief justice Jawwad S Khawaja and others have challenged the trial of civilians in the military courts under Army Act 1952.