One of the country’s leading lawyers and Pakistan Peoples Party (PPP) senior leader Aitzaz Ahsan has also approached the Supreme Court against the trial of May 9 rioters in military court, contending that such trials cannot take place without a constitutional amendment.
Ahsan has filed a constitution petition in the apex court through Latif Khosa and Salman Akram Raja, naming a number of institutions and people—including the federal government and former prime minister and Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan—as respondents.
In the petition that runs to 26 pages, Ahsan has raised a number of questions with regard to the trial of civilians under the Pakistan Army Act, 1952 and the Official Secret Act, 1923.
The country’s civil and military leaders last month decided to court-martial the people who allegedly vandalized and set fire to state and army properties and memorials in the wake of May 9 arrest of the PTI chief Imran Khan from the premises of a court in Islamabad.
Dozens of such alleged rioters were later handed over to military authorities for their trial under the Pakistan Army Act, 1952 and the Official Secret Act, 1923.
Taking exception to these trials, the petition said the decision–to refer cases of civilians to military courts for trials—can only be taken by the parliament through a constitutional amendment and not through a resolution “which has no effect in law.”
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Under the Constitution, it is not and can never be acceded to the military authorities and be deemed to be a prerogative of the armed forces to take a policy decision for the trial of civilians [in] military courts.
“Under 243 of the Constitution, the federal government has the control and command of the armed forces. Such control and command cannot be abdicated in favor of the armed forces,” it said.
It said the trial of civilians by military authorities and military forums during peacetime and for essentially civilians offenses is a complete anathema to the constitutional separation of powers, the independence of judiciary, the inalienable right of every Pakistani citizen to be treated in accordance with law and the fundamental rights of life, liberty, fair trial and due process.
The petitioner, however, clarified that he does not seek to defend any person who may actually be involved in wanton and despicable violence nor does he seek the acquittal of such persons.
Ahsan said the Supreme Court in the Mehram Ali case of 1998 and subsequent judgments held that no parallel legal system can be created which bypasses the operation of such courts as are established by or under Article 175 of the Constitution.
Referring to the military courts established after the December 16, 2014 attack on the Army Public School (APS) in Peshawar, the petitioner said the apex court has declared that the military courts formed after the APS attack through the 21st Constitutional Amendment were for a limited time—with 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.
The petitioner requested the court to declare trial of civilians in military courts under the Pakistan Army Act, 1952 as 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.
It requested the court to declare sections 2(1)(d)(ii) and 59(4) of the Pakistan Army Act, 1952 ultra vires the Constitution. It also prayed to the court to declare Section 94 of the Pakistan Army Act, 1952 and the 1970 Rules as inherently discriminatory and in direct violation of Article 25 and 175.
Former prime minister Imran Khan has already filed a petition against the trials through Hamid Khan. Some members of the civil society have also moved the apex court through Advocate Faisal Siddiqi. However, no petition has been entertained so far.
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