Civilians trial in military courts: Sindh govt, Shuhada body appeal against SC ruling

ISLAMABAD: The caretaker Sindh government and Shuhada Forum, Balochistan, on Thursday separately requested the Supreme Court to set aside its judgment declaring unconstitutional the trials of civilians in military courts.

The Sindh chief secretary filed an appeal 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.

The caretaker provincial government prayed the apex court to allow its appeal against the short order of October 23, 2023.

It further prayed the court to suspend the operation of the short order till the appeal is pending.

On October 23, a five-member larger bench of the apex court headed by Justice Ijazul Ahsen and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik had declared trial of civilians in the military courts as unconstitutional and held that 103 persons and others who may be placed in relation to the events arising from May 9 and 10 could be tried by criminal courts established under the ordinary or special law of the land.

In its appeal against the impugned judgment, the Sindh government questioned as to whether the bench (and/ or its majority decision, as applicable) fails to particularise the very basis on which the aforesaid provisions of the Army Act have been declared as unconstitutional?

Whether the bench materially erred in disregarding the earlier precedent(s) which were binding on the same, and whether the same renders the short order as per incuriam?

The Sindh government asserted that the Court Martial established under the Army Act has at several instances been declared by the apex court as constitutional and fully compatible with the principles of fair trial and the due process of law. “Furthermore, the Appellant seeks the guidance of this Court that if any additional safeguards are to be provided for the preservation of fundamental rights,” the Sindh government submitted, adding that the petitions were not maintainable in terms of and under Article 184(3) of the Constitution.

It contended that the proper course would have been to direct the petitioners to approach the appropriate forum for the redressal of their alleged grievances. However, the bench proceeded to exercise its extraordinary jurisdiction which resulted in the passing of the short order, it submitted. It contended that the petitioners did not challenge or bring before the bench a new legislative instrument which had not been tested earlier on the anvil of the Constitution (or any infraction, inter alia, of any of the Fundamental Rights guaranteed therein) or which had not been interpreted earlier by the superior courts of Pakistan.

“Thus and given that s. 2(1)(d) and s. 59(4) of the Army Act had earlier been declared to be intra vires the Constitution, the bench could not have revisited the issue, not least, without forming a larger bench,” it submitted. It further contended that the trials conducted under the Court Martial do not, in any manner, curtail the rights guaranteed under the law, and fully uphold the principles of natural justice, due process of law, and fair trial.

Separately, Nawabzada Jamal Raisani, Shuhada Forum, Balochsitan, patron-in-chief, and legal heirs of Shuhada filed an Intra Court Appeal (ICA) under Section 5 of the Supreme Court (Practice and Procedure) Act 2023 against the judgment delivered on October 23. They have prayed the apex court to set aside and reverse the judgment and order of the court passed by the five-member larger bench.

The appellants submitted that over the years not only our armed forces and other law enforcement agencies (LEAs) have been ruthlessly targeted but the nation has also suffered tens of thousands of civilian fatalities owing to the ongoing war against terror. In this melee, thousands of members of our armed forces and LEAs have sacrificed their lives and became Shuhada. “Pakistan has most unfortunately become one of the worst terror-stricken nations, with number of Shuhada and injured increasing every passing day,” they maintained.

The petitioners submitted that families, across Pakistan, send their sons and daughters to serve in the armed forces and LEAs, knowing fully well the odds and the risks involved that they may either lose them forever as Shuhada or have them back as critically maimed, incapacitated, invalided, battle-wounded Ghazis.

They further submitted that with this in backdrop, when the most unfortunate incidents, so unfolded on May 9 and 10, 2023, where unruly and extremely provoked mobs and throngs of miscreants disguised as political activists, fueled with unparallel incited hatred, misplaced anger and misguided disdain towards armed forces and LEAs, stormed and flooded the roads, blocked public thoroughfares, confronted the armed forces personnel, attacked military installations, forcibly entered into different protected and most sensitive works of defence, besieged government properties, vandalised and desecrated Shuhada monuments, thus crossed many redlines.

The petitioners believe that to bring these culprits to the book and punish them for their extremely culpable misdeeds, the State had rightfully decided to send some of the cases to be tried by the military court under relevant provisions of the Pakistan Army Act 1952. They contended that the impugned decision is passed in absolute disregard to the spirit of Constitution and law, as numerously declared and laid down, previously by the apex court. “The five-member bench of the Supreme Court that passed the impugned decision, could not sit in appeal or reconsider past pronouncements of this court so made by much larger benches, as detailed in the facts so narrated in preceding paragraphs,” they maintained. They submitted that legal preposition that civilians can be tried in Court Martial has already been numerously considered and found intra vires the present Constitution.