Govt gears up to challenge SC military court order

The caretaker governments have decided to engage private counsels for challenging the Supreme Court’s October 23 verdict, declaring the trial of May 9 rioters in military courts as unconstitutional.

It is learned that the government has devised a plan to challenge the judgment through different ministries and provincial governments.

Attorney-General for Pakistan (AGP) Mansoor Awan will continue to represent the federal government. The defence ministry has engaged senior lawyer Khawaja Haris while the interior ministry has hired Ahmer Bilal Sufi, who is known for his expertise in international laws.

The Balochistan and Sindh governments are respectively hiring Sikandar Bashir Mohmand and Jahanzaib Awan to challenge the verdict.

An intra-court appeal (ICA) has to be filed within 30 days after unveiling of a verdict. This appeal is listed for hearing within 14 days of its filing.

Under the Supreme Court (Practice and Procedure) Act, 2023, a three-member committee led by the Chief Justice of Pakistan (CJP) decides about the composition of the larger bench to hear an ICA.

One section of lawyers is also urging CJP Qazi Faez Isa to list appeals against acquittal by the Peshawar High Court (PHC) of civilians who were convicted by military courts formed in the wake of December 2014 terrorist attack on army-run school in Peshawar.

The SC had suspended the PHC’s acquittal verdict, and the case has been pending since 2019.

A five-judge bench of the SC on October 23 unanimously declared the trial of alleged May 9 rioters in military courts as null and void. Led by Justice Ijazul Ahsan, the bench comprised Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik.

Read: Military trials have already begun, SC informed

It had ordered that the 103 accused in cases relating to the violence that erupted in the wake of PTI chief Imran Khan’s arrest on May 9 be tried under the ordinary criminal laws.

The court through a 4-1 majority verdict had also declared certain clauses of the Pakistan Army Act, 1952, as ultra vires the Constitution and of no legal effect.

One member of the bench, Justice Afridi, had reserved his verdict on one para, though siding with the bench on the remaining paras. The petitions, questioning the legitimacy of trying civilians in military courts, were filed by former CJP Jawwad S Khawaja, senior lawyer Aitzaz Ahsan, and others.

Earlier, the bench was informed that trials of 103 people had already begun in military courts.

In its short order, the bench had declared that any action or proceedings under the army act in respect of the 103 persons “or any other persons so similarly placed (including but not limited Constitution Petition Nos.24, 25, 26, 27 & 28 and 30 & 35 of 2023 to trial by Court Martial) are and would be of no legal effect.”

The court held that the trial of civilians under Section 2d(i) and 2d(ii) of the Pakistan Army Act, 1952 was unconstitutional. “It is hereby declared by Mr Justice Ijazul Ahsan, Mr Justice Munib Akhtar, Mr Justice Sayyed Mazahar Ali Akbar Naqvi and Mrs 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 judgment read.

“Mr Justice Yahya Afridi reserves judgment as to para (i) above, but joins the other members of the Bench as regards paras (ii) and (iii),” it added.

The court also dismissed nine petitions filed in favour of the military courts. According to experts, clauses (i) and (ii) of Section 2(d) of the Pakistan Army Act, 1952 referred to action against persons who are not part of the defence forces.