After the Supreme Court declared military trials of civilians unconstitutional, the cases of suspects facing proceedings in these courts for violation of the Pakistan Army Act 1952 are likely to be moved to special courts, according to experts.

The landmark judgement took away the power of the army to try civilians in the military courts, not only for violation of the official secret law, but even in cases where civilians were tried along with the army officials for the violation of the army act.

The verdict declared the PAA’s Section 2(1)(d) along with its sub-clauses (i) and (ii) as unconstitutional, which had brought civilians under the ambit of the army act for “seducing or attempting to seduce any army officer from his duty or allegiance to the government” and for committing offences in relation to “work of defence”. The judgement also set aside Section 59(4), which declared court martial of “any person” under the army act.

Experts said civilians could only be tried by the special courts for violation of the Official Secrets Act and the cases pending with the military courts would be transferred to special courts as anti-terrorism courts could not try an accused for breach of state’s secrets.

An expert on military law expressed concerns over setting aside sub-clause (i) of Section 2(1)(d). Former judge advocate general retired Brigadier Wasaf Khan Niazi said the Supreme Court validated this sub-clause a number of times. He said Section 2(1)(d) was introduced in the PAA in 1967 and hundreds of civilians were tried by the military courts under this provision.

He pointed out that the apex court’s bench, in the case of Brigadier F.B. Ali, validated this section and then, in a number of cases, upheld military courts’ verdicts.

He said that the apex court’s verdict raised a question mark on all decisions of military courts, adding that the ruling apparently incapacitated the army to proceed against a civilian even in cases pertaining to the “work of defence, arsenal, naval, military or air force affairs” and Official Secrets Act.

Retired Col Inamur Rahim said that after his retirement about 15 years ago, he challenged these provisions of the Army Act in dozens of petitions and over 30 petitions against civilians’ trials under the PAA were still pending in the superior courts. He said the decisions of military courts against civilians had no legal effects now.

He pointed out a son of a retired major general was taken into custody for violating sub-clause (i) of Section 2(1)(d) and activist Idrees Khattak was convicted by a military court under the Army Act.

He, however, said that the convicts, under this section, could file an appeal before the high court where they were likely to get relief since the military court apparently was a “coram non judice” or had no jurisdiction to try the civilians.

Additional Attorney General Siddique Awan pointed out that four members of the Supreme Court bench scrapped Section 2(1)(d), adding that the previous judgements that validated this section were decided by a five-member bench.

He expressed the possibility that the apex court may restore the military’s power to try civilians under this section in the appeal likely to be filed by the government soon.

Senior advocate Sajid Ilyas Bhatti, who was a counsel in this case, said the 17-member Supreme Court bench, while hearing the petition of a district bar association against the 21st Amen­dment — which expanded the scope of military courts — observed “no anomaly” after scrutinising the Pakistan Army Act.

He said a five-member bench of the apex court, hearing an appeal of an accused Said Zaman, validated his trial by a military court under the Official Secrets Act in 2017.

Following the May 9 violence which targeted army establishments as well, a decision regarding the military trial of violent protestors was taken at a special meeting of the Corps Commanders on May 15.

Published in Dawn, October 24th, 2023