Military courts: Caretaker federal govt appeals SC verdict

ISLAMABAD: After the Sindh government and Shuhada Forum, the caretaker federal government, Balochistan and Khyber Pakhtunkhwa (KP) interim governments on Friday also requested the Supreme Court to set aside its judgement, declaring the trial of civilians in military courts as unconstitutional.

The interim government through the Ministry of Law, Justice and Parliamentary Affairs filed an Intra-Court Appeal (ICA) under Section 5 of the Supreme Court (Practice and Procedure) Act 2023 read with Article 184 (3) of the Constitution against the order passed by the apex court in the petitions, challenging the trial of civilians in military courts.

Filed through the Attorney General office, the federal caretaker government prayed the apex court to allow its appeal, set aside the judgement dated October 23, 2023, and dismissed the petitions that had challenged the trial of civilians in military courts with cost.

It is pertinent to mention here that the caretaker Sindh government as well as Shuhada Forum, Balochistan, on Thursday also challenged the judgement of the apex court with the same prayer.

The court by a majority 4-1 while deciding the instant petitions had declared trial of civilians in military courts as unconstitutional. It is hereby declared by Justice Ijaz ul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Malik that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act 1952 (in both of its sub clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect, the court had held.

In its ICA, the caretaker federal government questioned as to whether under Section 2 and 3 of the Supreme Court (Practice and Procedure) Act 2023 the judgement is coram non judice and a nullity?

Whether, the petitioners had made out a case for invoking the extraordinary jurisdiction of the apex court under Article 184(3) of the Constitution and whether the original jurisdiction of the high court was not the appropriate forum for adjudication of the legal issues raised in the petitions, the interim government further questioned.

It submitted that the Supreme Court (Practice and Procedure) Act 2023 has taken effect since April 21, 2023 i.e. from the date of its commencement in terms of Article 75(2) of the Constitution. In view of the Act having attained constitutional validity, the constitution of the bench in the petition No 24/2023 is in contravention to the procedure prescribed under section 2 and 3 of the this Act, therefore, the judgement is liable to be set aside for having been rendered coram non judice and thus a nullity in the eyes of law, it contended.

It further said that the petitions are not maintainable before the Supreme Court in its original jurisdiction under Article 184(3) of the Constitution.

The apex court had dubbed its original jurisdiction under Article 184(3) of the Constitution as extra ordinary, the caretaker government contended, adding that the court has held that when remedies and forums are available under ordinary law, then those forums are to be excluded 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.

It further submitted that the challenges raised in the petitions could adequately have been adjudicated by the high courts in their original constitutional jurisdiction under Article 199 of the Constitution which inter alia, empowers the high courts to make an order as be appropriate for the enforcement of any of fundamental rights.

It submitted that Section 2(1) (d) and 59(4) of the Army Act are constitutionally insulated from a challenge on the touchstone of fundamental rights and the Oct 23 judgement to the extent that it has failed to appreciate this, has erred in law therefore, on this count, the judgement is liable to be set aside.

The caretaker government highlighted that the trials, under the Army Act, were not sought to be conducted against all persons arrested, who were involved in violence on May 9, but only those individuals who strictly fall within the offences stipulated in the Official Secret Act.

Specifically, only those individuals are infiltrated a “prohibited place”, or committed other like offences, within the meaning of Official Secrets Act, are being prosecuted, under the Army Act, it maintained. It submitted that under Article 45 of the Constitution, the President of Pakistan has been empowered to grant pardon, reprieve or respite and to remit, suspend or commute a sentence passed by the military court.

Meanwhile, the Ministry of Defence also filed an appeal in the apex court against the judgement, declaring the trials of civilians in military courts as unconstitutional.

It prayed the apex court to set aside the October 23 judgement. It submitted that the petitions were non-maintainable hence its appeal may be allowed and till pending of this appeal, the judgement be suspended. Likewise, the caretaker governments of KP and Balochsitan also challenged the apex court judgment and prayed to set aside it.