Now that the Supreme Court has issued the verdict on the question of the trial of civilians under the Army Act, the question is: should the government prefer an appeal? The decision of course rests with the caretaker cabinet, however, if it opts to prefer an appeal against the verdict, the decision will not be unfounded.
The May 9 episode is not that simple a thing to be ignored. This was a sinister move. The May 9 episode is believed to be a mutiny aimed at eviscerating the state institution from within. It is not treated the way it deserves to be treated, it shall encourage such elements to repeat the same episode in the time to come.
The heart-rendering May 9 episode was not a political protest that turned violent. It is believed to be a mutiny aimed to eviscerate the state institution from within. Taking away the files from the Core Commander’s house, destroying and attacking the military installations, and belonging to Armed forces fall under the purview of the Army Act and the Official Secret Act and can be tried by the military courts as per section 2 of the Army Act.
Section 2 of the Army Act has spelled out who can be tried under the Army Act. Subclause (d) allows civilians to be tried if they are accused of seducing or attempting to seduce any person subject to this Act from his duty or allegiance to the government or having committed any offense concerning the naval, military, or air force affairs of Pakistan under the Official Secrets Act.
Is it impermissible under the Constitution? the court has issued its verdict. However, this is still room and arguments to file an appeal. Article 10 A of the Constitution only talks about a fair trial. Whether or not a trial is fair depends upon the facts of every trial. There is no hard and fast rule that every trial in an ordinary court shall be declared a fair trial and a trial in a military Court is destined to be an unfair trial. A trial may be fair in any court of law and it may accomplice the opposite in any court depending upon the facts and details of every case separately.
Admittedly, there is no right of appeal available under the Army Act. Section 133 of the Act explains that no appeal or application shall lie to any Court exercising any jurisdiction whatsoever (except to the Chief of Army Staff). However one can initiate the writ jurisdiction of High Courts and Supreme Court. The right to review is also available on grounds of coram non-judice, mala fide and without jurisdiction and the superior courts can review the sentences awarded under the Army Act.
Again ‘should it be’ and ‘can it be’ are abutting here but that is another thing the Parliament should look into. The fact is that the Army Act has been amended many times and can be amended in the days to come.
The decision to try those involved in the May 9 incidents is not unprecedented either. This is not the first time civilians are being tried under the Army Act.
Pakistan Army (Amendment) Act 2015 also provided explicitly that those involved in terrorism or attacking military installations could be tried by military courts under the Army Act. Though enacted for a short period, it is no longer in the field, yet it is sufficient to cull this ambiguity about whether or not civilians can be tried under the Army Act. Supreme Court has also declared, earlier, that a civilian can be tried under the Army Act. (2017 SCMR 1249)
