The veteran politician filed a plea challenging the decision in the apex court on Saturday, recalling that the Pakistan Army had decided during a Corps Commanders Conference on May 15 to “try civilians during peacetime for civil offences i.e. those allegedly involved in the May 9 incidents … in military courts established under the Pakistan Army Act, 1952”.
The decision was “rubber-stamped” by the federal cabinet on May 19 and reiterated by the Formation Commanders’ Conference on June 7, the plea added.
It said in addition to challenging this decision, the petitioner was also moving the court against “various laws which provide for the trial of civilians in military courts”.
“Moreover, through resolutions moved by … [Defence Minister] Khawaja Muhammad Asif, the National Assembly purports to have endorsed the decisions to try civilians in military courts on May 22 and June 12.”
The plea contended that “the trial of civilians by military authorities and military forums during peacetime and for essentially civilian offences is a complete anathema to the constitutional separation of powers, the independence of the judiciary, the inalienable right of every Pakistani to be treated in accordance with law, and the fundamental rights of life, liberty, fair trial, and due process”.
“They are alien to our constitutional and democratic dispensation and are, therefore, liable to be set aside.”
For these reasons, the plea said, “it is the petitioner’s case that the trial of civilians in military courts, especially under the present circumstances, is illegal, unconstitutional, discriminatory, violative of fundamental rights given in various provisions of the Constitution … and merits to be declared as such”.
Moreover, it said the petitioner believed that the decision to “try certain individuals allegedly linked with May 9 incidents is [also] illegal and unconstitutional”.
The plea further stated that Ahsan was “deeply aggrieved by the illegal and unconstitutional actions being carried out in the country over the past few months (including the brazen refusal to hold elections within the period prescribed by the Constitution), but especially the decision to try certain civilians in military courts impugned herein”.
Mentioning that the decision to hold trials in military courts was “primarily motivated by widely condemned incidents of violence which took place across the country in reaction to” the arrest of the PTI chief, the plea clarified that it “does not seek to defend any person who may actually be involved in the wanton and despicable violence nor does it seek the acquittal of any such persons”.
“The primary purpose of this petition is to ensure that none of the thousands of civilians who have admittedly been arrested for allegedly having partaken in that violence and who have been and are being nominated for trial before the military courts be tried by the military courts.”
The plea said: “No defence is being made herein with respect to those against whom there might be legally tenable evidence of their participation [in May 9 violence] but what is indeed being sought even on their behalf is that they also be tried according to due process and fair trial by courts.”
The plea also highlighted that a “large-scale crackdown” was initiated against the PTI after May 9, which included “media blackouts, breaking and entry into homes and private quarters, vandalisation of private property, arrests and disappearances of citizens, including journalists, who speak out in their favour, as well as the registration of a large number of FIRs against them”.
Citing media reports, the plea said the Formation Commanders’ Conference had “come to the conclusion that the evidence so far collected [in May 9 cases] is incapable of contradiction and irrefutable”.
“Which military court will be daring enough to dispute this unambiguous albeit premature finality of guilt decreed by perhaps the most authoritative forum in the Pakistan Army?” the plea raised the question.
Moreover, since the decision on military trials was initially taken by the army and later endorsed by the government, “as such, … [it] has not been taken by the federal government itself, but instead has been done at the behest of the Pakistan Army”, the plea argued. “This is the most conspicuous form of abdication of authority by the civilian administration.”
Referring to multiple previous cases, the plea drew the conclusion that the “law, as it stands today, simply does not allow for civilian trials in military courts”.
“The very decision to set up military courts to try civilians is without jurisdiction and amounts to corum non judice (a legal term used to indicate legal proceeding carried out outside the presence of a judge),” it added.
According to the plea, “the only window, in recent times, that was allowed to military courts to try civilians was provided by the Constitution (21st) Amendment Act I of 2015 and Constitution (23rd) Amendment Act of 2017.
“[With] both the said acts having expired in January 2019 … there is no scope for any military court now to try any civilian.”
“Any attempt to cause a so-called trial of civilians before military courts amounts to an action that suffers from lack of jurisdiction, excess of jurisdiction and malice of law,” it added.
The plea also highlighted that military trials were also in violation of international covenants and Articles 9, 10A and 175 of the Constitution.
Moreover, the plea said only some of the May 9 suspects were being tried under army laws, hence, “resulting in discrimination and a violation of Article 25, which mandates that all similarly placed persons should be dealt with equally”.
The plea stressed that the trials of alleged perpetrators of the events of May 9 be tried in open court under full public scrutiny.
It went on to allege that the “illegal infliction of military courts upon large and unspecified sections of civilian citizens of Pakistan, be they innocent bystanders, by an imperfect and often misleading process of ‘geo-fencing’ is mainly due to the intense malice and ill-will between” Khawaja Asif, Rana Sanaullah and Prime Minister Shehbaz Sharif on the one hand, and the PTI chief on the other.
It also argued that the trial of civilians under the Army Act “is patently mala fide (both in fact and law) as it is meant to create awe and fear in the population at large against their support of a particular political party”.
The plea moved the court to declare that the trial of civilians before military courts under the Army Act was not permitted and violative of, inter alia, Articles 4, 9, 10A and 175 of the Constitution.
The plea also sought the declaration of Sections 2(1)(d)(ii) and 59(4) of the Army Act as ultra vires to the Constitution, or in the alternative, the court’s declaration that they cannot be invoked for the offences allegedly committed on during the events of May 9 and covered under subsequent FIRs.
Moreover, it urged the court to “declare that Section 94 of the Army Act and the 1970 Rules are inherently discriminatory, in direct violation of, inter alia, Articles 25 and 175 of the Constitution and void”.
The plea also prayed the court to declare “the referral of trials of various accused by the ATCs to military courts is the result of a lack of application of mind by the ATCs and hence, arbitrary, discriminatory and in violation of Sections 94 and 95 of the Army Act, as well as Articles 25 and 175 of the Constitution”.
