Whatever happened on 9th May 2023 will be certainly be remembered as another black day in the history of Pakistan. PTI workers and other unidentified and identified protestors desecrated memorials of martyrs as well as sensitive installations of Pakistan armed forces were also attacked and subsequently destroyed. Jinnah’s house, currently Corps Commander residency in Lahore was not spared. Also, offenders burnt pictures of martyrs and fighter plane of 1965 hero M.M Alam in Mianwali was also targeted. PTI miscreants also damaged the monument of Captain Karnal Sher Khan Shaheed (Nishan Haider) whose bravery was appreciated even by the enemy. Whatever happened on 9th May 2023 is unquestionably unlawful consequently a stern legal action against individuals responsible for attacks on security installations, public properties, national dignity and riots must be initiated by the State.
Nonetheless, the question is, whether trials of miscreants of 9th May 20223, under Army Act 1952 and Official Secret Act 1923, Constitutional? In terms of the Section 2 (1) (a) (iii) of the Army Act 1952 only a civilian belonging to a “terrorist group” could be tried under the said Act. Section 41(c) (Certain forms of disgraceful conduct) of the Act states that any person guilty of any disgraceful conduct of a cruel indecent or unnatural kind shall be on conviction by Court martial. Similarly Section 45(b) (Destruction of property) states that any person guilty of wilfully destroys or injures any Government or service property shall be on conviction by Court martial. However, the existing provisions of the Pakistan Penal Code 1860 particularly Chapter VI (offences against the state) and chapter VII (offences relating to the army, navy & air force) are available against the protestors of 9th May 2023 for their unlawful actions and unacceptable vandalisms.
Trial of civilians under Army Act would certainly be violative of Article 4 of the Constitution of Pakistan 1973, which provides rights of individuals to be dealt in accordance with law with the due process. Article 4 clearly states that it is inalienable right of every citizen to be treated in accordance with law and no action detrimental to the liberty of the citizen shall be taken except as per law. It is an established practice that is deep rooted in the custom and usage of law and, therefore, it cannot be overlooked and disregarded by anyone or any institution. Any violation of law and unjust and partial practice of public functionaries, which adversely affect the rights of the citizens, would undoubtedly be unconstitutional. Likewise, Article 10-A of the Constitution of Pakistan provides right to a fair and unprejudiced trial. Right to be heard is read as an integral part of every statute affecting the rights of a citizen after the insertion of Article 10-A of the Constitution, every citizen to Pakistan enjoys protection of laws of land, any action adverse to rights of a person must therefore be through the mechanism or in accordance with laws, which protect such persons. Right to a fair trial provides for determination or civil rights and obligations of a person through a fair trial and due process.
Similarly, Section 24-A of General Clauses Act, 1897, casts an affirmative duty upon “authorities” to pass an order or judgment with reason by giving all parties a transparent opportunity to present their submission in “accessible Courts”. It is an undeniable fact that military Courts located in cantonment areas does not have easy access to public or media, which itself is a breach of Article 19-A (right to information) and 10-A (right to fair trial) of the Constitution. It is worth mentioning that the High Courts have issued verdicts, with strong observations over the manner in which the Military Courts conducted the trials. It is a matter of record that High Courts have set aside more than 200 convictions in the past, which were awarded by the Military Courts. Trial under army act are required to be public in terms of Article 19-A (right to information) and 10-A (right to fair trial) of the Constitution.
Military Trials, in my humble view are also contrary to Article 14 of the International Covenant on Civil and Political Rights (ICCPR), which guarantees the right to a trial before competent independent and impartial Courts. It is relevant to cite the principle of natural justice audi alteram partem i.e. no one is to be deprived of civil liberties unless provided impartial hearing, which is enshrined in the Constitution and forms the bedrock of any decision-making process which affects the right of any party. Also, it is relevant to mention that in terms of Section 24 of the Protection of Pakistan Act, 2014, the said Act has an over-riding effect on all the law, and if there is inconsistency, the Protection of Pakistan Act, 2014 shall prevail whereby Pakistan Army Act, 1952 was amended on 07.1.2015. Similarly, civilian’s trial under Army Act may possibly reflect pick and chose policy hence the element of discrimination is also a possible outcome, which must not be ignored.
As supremacy of judiciary is at stake, trials of civilians under Army Act 1952 would amounts to interfering into the independence, powers and authority of the judiciary, judicial system and principles of safe administration of criminal justice in gross violation of Article 4, 10-A, 19-A & 175 of the Constitution of Pakistan as such discretion has to be exercised fairly by a competent Court(s) of law under the relevant provisions of the Pakistan Penal Code 1860.
The writer is Advocate High Court, based in Karachi.
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