— Federal, provincial govts engage top lawyers to challenge the verdict
— AGP likely to represent federation, Khwaja Haris being contacted too
ISLAMABAD: The caretaker federal government is contemplating its options to challenge the Supreme Court (SC) judgment of declaring military trials of civilians unconstitutional.
According to highly credible sources, the federal and provincial governments have hired top lawyers to challenge the verdict issued by a larger bench of the apex court last month.
A five-judge bench of the SC had in October unanimously declared the trial of civilians in military courts as null and void and ordered that the 103 accused in cases relating to the violence on May 9 and 10, 2023 be tried under the ordinary criminal laws.
According to the sources, Attorney General of Pakistan Mansoor Awan will represent the federal government in case the verdict is challenged while the defence ministry has in talks with senior lawyer Khawaja Haris and the interior ministry has hired Ahmer Bilal Sufi.
Meanwhile, the Balochistan and Sindh governments intend to submit pleas against the verdict through Sikandar Bashir Mohmand and Jahanzaib Awan, respectively.
Under the law, intra court appeals have to be filed within 30 days and the same are to be fixed for hearing within 14 days of application.
The court through a 4-1 majority also declared certain clauses of the Army Act as ultra vires the Constitution and of no legal effect. One judge of the bench, reserved his verdict on one para, though siding with the bench on the remaining paras.
The bench, led by Justice Ijazul Ahsan and including Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahir Naqvi, and Justice Ayesha Malik heard the petitions that had challenged the trial of civilians allegedly involved in the May 9 violence in the military courts.
The petitions, questioning the legitimacy of trying civilians in military courts, were filed by former chief justice Jawwad S Khawaja, senior lawyer Barrister Aitezaz Ahsan and others. The other day, the apex court was informed that trial of 103 people in the military custody had already begun.
The apex court announced a short order following the hearing of the case. The five-member bench unanimously declared that civilians would be tried under ordinary criminal laws of the land in relation to such offences.
“Without prejudice to the generality of the foregoing the trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the learned Attorney General for Pakistan by way of CMA No.5327 of 2023 in Constitution Petition No. 24 of 2023 and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and / or special law of the land in relation to such offences of which they may stand accused,” the court order said.
The court further declared that any “action or proceedings under the Army Act in respect of the aforesaid 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 6 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 Army Act was unconstitutional.
“It is hereby declared by Mr. Justice Ijaz ul 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 2d of the Army Act referred to action against persons who are not part of the defence forces. Subsection (4) of Section 59 stipulated the application of the Army Act on persons for offenses against any defence, armament, navy, army or air force establishment or station, ship or aircraft or navy.
The petitions were filed by Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan; chief justice (retd) Jawwad S Khawaja; Supreme Court Bar Association (SCBA); Barrister Aitzaz Ahsan; Karamat Ali; Zaman Khan Vardag; Junaid Razzaq; Hafeezullah Niazi; Lt Col (retd) Inam-ul-Rahiem and Naeemuddin Qureshi.
