ISLAMABAD, JUL 17: The federal government told the Supreme Court (SC) on Monday that trying civilians accused of attacking sensitive installations in military’s courts was an “apt and proportionate response” to the events of May 9 — when violent protests broke out in the country following the arrest of PTI chief Imran Khan.
The government made the argument in a concise statement submitted to the court, which will resume hearing challenges to the trial of civilians in military courts tomorrow (July 18), by Attorney General for Pakistan (AGP) Mansoor Usman Awan.
The petitions in question were filed by ex-chief justice Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and the PTI chief. During a previous hearing, the AGP had told the apex court that 102 civilians, arrested from various parts of the country in the wake of May 9 violence, were in the military’s custody.
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 that the total damage came in at Rs2,539.19 million, including Rs1,982.95m in losses to military establishments, equipment and vehicles.
The government said that while some of the first information reports (FIRs) registered against the suspects did not explicitly mention provisions of the Army Act, the Supreme Court had previously held that the contents of the FIR and not the mentioning of a particular statutory provision determined the nature of the offences made out.
“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.
Article 184(3) of the Constitution sets out the SC’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.
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 the exercise of 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 being in violation of fundamental rights. Highlighting the amendments made to the Army Act, the government said that offences made triable “do not have a direct nexus with the proper discharge of duties by members of the armed forces”.
The government said that trials under the country’s army laws were not being 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 instrument 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 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”.
In conclusion, the government said that the violence against military and defence installations and establishments was a “direct attack” on the country’s national security.
“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, calling on the top court to dismiss the pleas.