In the verdict of a five members Bench of Supreme Court of Pakistan, trial of civilians in military courts was declared unconstitutional. The Bench also declared Section 2(D)(1) of the Army Act unconstitutional. The court also declared Section 59(4) (civil offences) of the Act to be unconstitutional. This verdict was especially focusing on the trials of civilians which were involved in the violence of May 9, 2023. The court ruled that, cases of 102 civilians, involved in the incidents of May 9, 2023 shall be conducted in civilian criminal courts. It is worth mentioned that, Pakistan Army Act is operational since 1952 and there have been many civilians who were tried under its Section 59.
With particular reference to Section 2(1)(d) of the Act, it states: “persons not otherwise subject to this Act who are accused of seducing or attempting to seduce any person subject to this Act from his duty or allegiance to government, or having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan” can be tried under the secrets act. This Act has the approval of Parliament being part of the Constitution of Pakistan. If the provisions of Pakistan Army Act (Section 59) were applicable in earlier cases for decades and decades, then why it is declared unconstitutional this point of time. With regards to Section 59(4), it states : “Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of subsection (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act; and the provisions of this section shall have effect accordingly.” The arrested people involved in the incidents of May 9, 2023 had committed offences while being the prohibited areas which clearly mean that they can be tried in the military courts. Indeed, violence committed on May 9, 2023 were all in the prohabitated areas like; GHQ Rawalpindi, corps commander’s residence in Lahore, PAF Base Mianwali, and an office of the Inter-Services Intelligence (ISI) in Faisalabad. Should such attackers be tried in civilian courts while they have committed the offence in military areas, otherwise prohibited as per PAA and Official Secret Act?
On the political front, the essence of politics has to be; to serve the people in the most honorable and honest manner. Politics is more of problem resolution mechanism within a group, a community, society and at the level of state (s). In the civilized societies, the problem solving mechanism involves adoption of peaceful ways and means. Indirectly, the essence of politics is service of the people while making use of best practices. For decades the Pakistani politics has been peaceful and decent at least while dealing with people and state. There have been narrative buildings against opponent parties and rival groups but never against state and its institutions. In last few years, there has been introduction of element of violence and fascism in the politics of Pakistan. Initially, this trend was seen in 2014, once leadership of Pakistan Tehreek-i-Insaf (PTI) under Imran Khan and Pakistan AwamiTehreek (PAT) under Muhammad Tahir-ulQadri, made a sit-in (Dharna) against the Government of Mian Nawaz Sharif for 126 days. An element of violence was noticed at that time and a similar element was noticed once Imran Khan was deposed in April 2022.In the politics of Pakistan, the element of violence was more pronounced from April 2022 to May 2023. It reached to its peak after the unfortunate incident of May 9, 2023. After arrest of Imran Khan, his followers attacked military installations and national assets all over the country. The earlier time span (April 2022 onwards) was used for changing the mind-set of the masses and his party workers against the state institutions. Indeed, masses and party workers could never have assaulted the military and national installation had there been no orders and directive from the party leadership. This narrative of misleading the people and party workers of PTI was done after April 2022. Unfortunately, in the most of its judicial history judiciary of Pakistan has been under severe criticism over its decisions and judgments. The major criticisms include; decisions under political influences, biased verdicts, rifts among senior members of the judiciary, personal ego of the judges, decisions away from merits and political decisions rather judicial decisions. Besides, there are thousands of the pending cases, waiting for the decisions since years which speak of either inadequacy or else bungling at the level of judiciary. Besides, there are undue pressures of bars and influence of the senior lawyers which keep the senior judiciary handicapped to make timely and justified decisions. Since the lower courts take precedence from the superior judiciary therefore, the situation is worst at the level of session and district courts. It is indeed unlikely that, trials of the people subject to PAA Section 59 can be fairly conducted at the level of lower courts.
— The writer is Professor of Politics and IR at International Islamic University, Islamabad.
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