The civil society on Saturday filed a constitutional petition in the Supreme Court (SC) to challenge the trial of civilians under the Pakistan Army Act 1952 following violent attacks on state and military installations after the May 9 arrest of former prime minister Imran Khan in a corruption case.
The petition, filed through Advocate Faisal Siddiqi, puts forth certain questions of law that it deems important for “the enforcement of fundamental rights”.
It asks whether the trial of suspected civilians under the Pakistan Army Act 1952 read with the Officials Secrets Act 1923 is violative of Article 25 of the Constitution of Pakistan.
“Whether the trials of civilian accused persons under the Pakistan Army Act, 1952, Read with, the Official Secrets Act, 1923, in relation to allege offenses recorded in…FIRs (all arising out of the alleged criminal acts committed on 9th and 10th May, 2023), are violative of Article 25, Constitution, 1973, until and unless legal and reasonable guidelines are framed to structure the discretion not to arbitrarily try civilian accused persons under the Pakistan Army Act, 1952, instead of before criminal courts of general and special jurisdiction? [sic],” questions the petition.
Advocate Siddiqi cites Articles 10-A, 25, and 175 of the Constitution and asks whether the two laws in question can be applied to suspects and citizens accused of vandalism witnessed on May 9 and 10 “until and unless the constitutional right to a fair trial and due process, including but not limited to a statutory right of appeal to an independent court (with its full power of appellate review), is provided through an appropriate legislation?”
He further asks whether the federal government’s and the Ministry of Interior’s notifications to call on the armed forces to “act in aid of civil power or their deployment in the Islamabad Capital Territory, Province of Punjab, Province of Khyber Pakhtunkhwa, and Province of Balochistan, without specifying justifiable reasons, geographical qualifications, and time boundedness, are in violation of Article 245, Constitution, 1973, as well as, Section 4, Anti-Terrorism Act, 1997, and consequently, continue to violate the fundamental rights under Articles 10A, 14, 15, 16, 17, 19, and 25, Constitution, 1973, of the Petitioners and the citizens of Pakistan?”
Moreover, Siddiqi calls into question the petitioners’ and Pakistani citizens’ access to rights and protection granted under the constitution, as well as the state’s use of intelligence agencies and military personnel in the arrest and detention of political leaders, workers and citizens from different parts of the country, including court premises, without legal grounds specified.
The petition questions the bounds in which the armed forces can be called on by the state to assist with its functioning in relation to the events of May 9 and 10.
The petition clarifies that the members of civil society who are submitting these matters before the apex court are not associated with any political party, are well known, have been striving continuously for the welfare of citizens of Pakistan and “share a common commitment towards the ideals of rule of law and protection of fundamental rights as embodied in Chapter I of Part II of the Constitution of Islamic Republic of Pakistan, 1973”.
The petition goes on to list various incidents recorded on May 9 and 10 and the days that have followed, including the arrests of Pakistan Tehreek-e-Insaf chief and other political leaders associated with the party, details of vandalism during protests across the country, the arrests and detentions of almost 3,700 people in Punjab, 2,788 in Khyber Pakhtunkhwa, 500 in Islamabad Capital Territory, 86 in Balochistan and 350 in Karachi.
A total of 7,424 people have been arrested, according to the petition, which specifies that several have also been released.
The petition further brings on record allegations pointing to the involvement of intelligence officers, examples of custody of detained persons being given to military authorities in cases where the FIRs hold no mention of offenses under the Pakistan Army Act and the Official Secrets Act but were registered based on offenses specified under the Pakistan Penal Code and the Anti-Terrorism law.
Moreover, the petition calls into question the bounds defined in the Pakistan Army Act and where an offense listed under the Officials Secrets Act can be tried under the former. It also specifies that offenses covered by the Pakistan Penal Code and the Anti-Terrorism Act 1997 “mainly relate to bodily harm, rioting, arson, destruction of property, unauthorized entry etc”.
The petition builds its argument by citing various sections of the Pakistan Army Act and the Official Secrets Act while calling into question the applicability of the same on offenses committed by citizens as well as political leaders and workers during May 9 and 10.
It contends that it should be obvious and apparent that “mere violent political protest” does not automatically bring offenses committed by citizens under the ambit of the Pakistan Army Act and the Officials Secrets Act given the bounds defined in these respected laws as well as the absence of “essential criminal elements mens rea [the intention or knowledge of wrongdoing that constitutes part of a crime, as opposed to the action or conduct of the accused] and actus reas [the act or omission that comprise the physical elements of a crime as required by statute].
The petition further contends that not all offenses specified under the Official Secrets Act are subject to military trials based on the legislation of both acts.
The petitioners have moved the court to declare that the trials of civilian suspects accused in FIRs arising in relation to alleged criminal acts committed on May 9 and 10 under the Pakistan Army Act and the Official Secrets Act and “all actions taken in pursuant to it, are void ab initio and of no legal effect”.
The petitioners have further made prayer to apex court to “Declare that the trials of civilian accused persons under the Pakistan Army Act, 1952, Read with, the Official Secrets Act, 1923, in relation to allege offenses recorded FIRs (all arising out of the alleged criminal acts committed on 9th and 10th May, 2023), are violative of Article 10-A, 25, and 175, Constitution, 1973, until and unless the Constitutional right to a fair trial and due process, including but not limited to a statutory right of appeal to an independent court (with its full power of appellate review), is provided through an appropriate legislation and consequently, all such proposed and actual Court-Martial/Military trials and all actions taken in pursuant to it, are void ab initio and of no legal effect [sic]”.
Moreover, they move the court to transfer trials of civilian persons accused under the Pakistan Army Act read with the Officials Secrets Act in relation to alleged offenses committed on May 9 and 10 to “appropriate criminal courts of general and special jurisdiction (i.e., under Criminal Procedure Code, 1898, Anti-Terrorism Act, 1997, and by a Magistrate under Section 13, Official Secrets Act, 1923) for trials in accordance with such relevant law and in compliance with the fair trial and due process rights guaranteed under the Constitution and law [sic]”.
The petitioners have also prayed the court to restrain the federal government and the interior ministry from conducting military trials in relation to alleged offenses committed on May 9 and 10. They move the court to declare null and void notifications issued “without specifying justifiable reasons, geographical qualifications, and time boundedness” by both these parties to call on armed forces to act in aid of civil power and their deployment in Islamabad, Punjab, Khyber Pakhtunkhwa and Balochistan.
Such notifications, argues the petition, are in violation of Article 245 of the Constitution as well as Anti-Terrorsim Act 1997. Moreover, the petition contends that citizens have a constitutional right to have access to such notifications as well as documents related to their issuance and moves the court to direct the federal government and the interior ministry to bring such material into the public domain.