ISLAMABAD: Former law minister and lawyers’ movement stalwart Aitzaz Ahsan on Saturday approached the Supreme Court to question the trial of civilians in military courts during peacetime, with a plea to declare the practice an anathema to the separation of powers, the independence of the judiciary and the fundamental rights of the citizens.

Moved through his counsel, Sardar Latif Khosa, the petition explained that it did not intend to defend any person who may actually be involved in the wanton and despicable violence of May 9, nor did he seek the acquittal of such persons.

Rather, 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 the May 9 violence and who are being nominated for trial before the military courts — be tried by them.

The petitioner also did not seek to scuttle any trial of any civilian before any lawfully established court of criminal jurisdiction such as the sessions court or the anti-terrorism courts, the petition emphasised.

Petitioner says not asking for acquittal of rioters, or scuttling of trials in established courts

This is the second such petition, challenging trials of civilian accused under the Pakistan Army Act (PAA), 1952, and the Official Secrets Act (OSA), 1923. Earlier on June 10, five members of civil society from different areas, through their counsel Faisal Siddiqi, had sought a declaration from the Supreme Court to declare the trial of civilians in the military court in relation to alleged offences of May 9 as illegal.

One critically novel and unique aspect of the entire process of the government’s efforts to arrest and imprison those found or suspected by it to have been participants of the May 9 incidents has been that several senior leaders of a political party have been given the privilege of freedom upon announcing their dissociation from such party, the petition regretted.

But no such opportunity has been extended to any of the several thousand detainees of a lower station in life, the petition recalled adding this was ex-facie discriminatory and mala fide on the part of the government.

It also established the collateral purpose being sought to be achieved under the garb of investigation and the statedly lawful incarceration of people, mostly innocent, but who have been roped in after throwing and spreading a wide but narrow net, the petition argued.

This carrot and stick policy is nefariously designed to crack the will of the cadre and to terminate the allegiance of the leadership of the political party, the petition contended, adding that at its inception, malice and ill-intended design were manifestly apparent.

The petition has prayed before the apex court to declare the trial of civilians before the military courts under PAA as impermissible and violative of Articles 4, 9, 10A and 175 of the Constitution and such trials for the offences allegedly committed during the May 9 incidents and covered under different FIRs.

The petition also pleaded to declare that Section 2(1)(d)(ii) and Section 59(4) of PAA are ultra vires and void or in the alternative cannot be invoked for the offences allegedly committed during the May 9 incidents and covered under different FIRs.

The petition has also asked to declare Section 94 of PAA inherently discriminatory and in direct violation of Articles 25 and 175 of the Constitution and therefore void.

The petition pleaded that the referral of trials of accused by the ATC to the military courts under Section 94 and 95 of the PAA was the result of a lack of application of mind by the ATC and hence arbitrary discrimination and in violation of the two sections of the act as well as Articles 25 and 175 of the Constitution.

Published in Dawn, June 18th, 2023

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