The Federal Government on Monday prayed the Supreme Court to dismiss petitions seeking to challenge trials of civilians accused of various offences emanating from the events of May 9.
The government, in its concise statement, stated that violence against military and vandalism of army installations was a direct attack on the national security of Pakistan, and was, therefore, prejudicial to security, interests and defence of Pakistan. It said the May 9 events, which were neither localised nor isolated, indicated a premeditated and intentional attempt to undermine the country’s armed forces and inhibit its internal security. The total damage incurred on the day was Rs 2,539.19 million, including a loss of Rs 1,982.95 million to military establishments, equipment and vehicles, the government added.
It further stated 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.
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, it added. 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. 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.
