ISLAMABAD: The defence ministry on Monday moved an intra-court appeal (ICA) before the Supreme Court challenging its Oct 23 unanimous decision to declare the trial of 103 civilians for their alleged involvement in the May 9 violence as against the Constitution.

The defence ministry also requested the Supreme Court to suspend the operation of the Oct 23 short order during the pendency of the ICA.

Moved through senior counsel Khawaja Haris Ahmed, the ICA argues that the top court traversed the jurisdiction and excluded from the ambit of the Pakistan Army Act 1952 those civilians who may be guilty of committing offences specified in Section 2(d)(1) of the PAA.

It says that by doing so the court is considerably undermining the ability of the armed forces to effectively discharge their constitutional duty to defend Pakistan against external aggression or threat of war, thus violating the very letter and purport of Article 245(1) of the Constitution.

Defence ministry asks top court to suspend its order until decision on ICA; says Supreme Court has gone beyond its jurisdiction

This is the fourth such petition before the Supreme Court. Previous petitions were moved by the federal as well as the Khyber Pakhtunkhwa and Balochistan governments.

Headed by Justice Ijaz-ul-Ahsan, a five-judge SC bench had on Oct 23 emphasised that the cases of the suspects involved in the May 9 riots and attacks on military installations will not be tried, from now on, in the military courts, but criminal courts of competent jurisdiction, established under the ordinary or special law of the land in relation to such offences, will hear such cases.

The ICA wondered were seducing or attempting to seduce any person, who was subject to PAA, from his duty or allegiance to government, or commission of any offence under the Official Secrets Act, 1923 in relation to any work of defence, arsenal, military establishment or station or military affairs of Pakistan, by civilians not acts that have a direct nexus with the armed forces.

Thus the civilians accused of these offences are legally triable under the PAA as held in and on the touchstone of the principle laid down in the retired Brig F.B Ali case. On the face of it, the ICA contends, the Oct 23 short order lacks material particulars, and as such is no order in the eye of law.

In any case, there is no legal basis for holding Section 2(d)(1)(i) and (ii) as well as Section 59(4) of PAA as ultra vires of the Constitution.

Published in Dawn, November 21st, 2023