ISLAMABAD: The Supreme Court’s constitutional bench hearing cases related to the military trials of civilians was told on Monday that Pakistan Army remains in a state of war for ensuring security of the country.
“And the purpose of Sections 2(1)(d)(i) and (ii) of the Pakistan Army Act (PAA) 1952 was to hold accountable whosoever committed any offence under these provisions like any other members of the armed forces since it involves the very security and defence of the country,” argued senior counsel Khawaja Haris Ahmed, representing the defence ministry.
Headed by Justice Aminuddin Khan, the seven-judge constitutional bench had taken up a set of 38 intra-court appeals (ICAs) moved by the federal and provincial governments as well as Shuhada Forum Balochistan among others against the 2023 order of a five-judge bench nullifying civilians’ trial by military courts involved in the May 9 violence.
Khawaja Haris explained that the May 9, 2023 events in which military installations were attacked had directly threatened the security and integrity of the country and therefore these offences involved the country’s defence. He argued the trials of the offenders were not done with malafide intent.
The counsel said the offences levelled against the accused did not come under the ambit of the Anti-Terrorist Act, rather they came under the domain of the Official Secret Act and Pakistan Army Act.
Justice Jamal Khan Mandokhail, one of the CB members, pointed out that the Supreme Court would only have to determine whether the trial of civilians in the military courts was in accordance with the Constitution, especially when provisions like Article 10A has been inserted in the green book to ensure fair trial.
“When it comes to the country’s security, strong measures need to be taken,” the counsel replied, also explaining that it was the job of competent authorities to gauge the level of threat or seriousness of the danger.
The counsel was of the opinion that emphasis should always be to save the legislation rather than striking it down while interpreting or determining the vires of the law.
He said the purpose of the military laws was to ensure discipline in the armed forces.
However, when the counsel said the military authorities could take cognizance under the PAA against any crime committed even by a civilian for which even registration of FIR was not necessary, Justice Syed Hasan Azhar Rizvi wondered what procedure would be adopted then and whether the accused would be present before a magistrate if arrested without any FIR under PAA.
Justice Muhammad Ali Mazhar also questioned how without FIR, cognizance could be taken.
He said FIRs were registered before initiating punitive action against the accused involved in the May 9 events.
The counsel touched upon the status of court martial and explained that the military courts did not fall under Article 175(3) of the constitution that asks for the separation of judiciary from the executive. He argued that the military courts established under the PAA were not subordinate to any high court and therefore did not come under the domain of Article 175(3) of the Constitution.
When Justice Mandokhail asked if the military courts did not come under Article 175(3), then under which constitutional provision would they fall especially when Article 175 exclusively talks about the judiciary.
Justice Mazhar also questioned the argument that military courts were not subordinate to the high court. The case will be taken up again on Tuesday.
