Farooq Naeem—AFP
The Supreme Court on Thursday rejected a plea of Aitzaz Ahsan to take suo motu notice of the Official Secrets Act (Amendment) Bill, 2023, noting it had not yet become law.
The matter was taken up during ongoing proceedings into petitions against the trials of civilians in military courts, with Ahsan in particular pointing to clauses in the controversial legislation that empower intelligence agencies to conduct raids or detain any citizens at any time without requiring warrants. The bill was approved by the National Assembly earlier this week, but faced stiff opposition in the Senate, leading it to being referred to the relevant standing committee despite calls for its immediate rejection.
Referring to the amended bill, Ahsan urged the six-member bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial to take suo motu of it. To this, the CJP inquired if the legislation had become law. “It is under discussion in the Senate,” replied the senior lawyer.
The CJP then noted that the court had no knowledge of the legislation beyond what has been reported in the media, adding that a previous SC bench had already ruled that the CJP could not unilaterally take suo motu notice. “Fortunately, the bill is still being debated in one of the Houses,” he observed and advised Ahsan to wait and see what the Senate does before seeking any relief.
Unconstitutional steps
The CJP is leading the six-member bench—comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha A. Malik—hearing a set of petitions against the trials of civilians in military courts. During today’s proceedings, he reiterated regret and grief over the May 9 riots, adding he did not want the Army to “raise weapons” against the people of Pakistan.
Observing that the armed forces’ restraint on May 9 should be appreciated, he maintained that this did not grant license for the military to take any “illegal steps” in response. Noting the court required further guidance on the issue from Attorney General for Pakistan (AGP) Mansoor Usman Awan, he said this would not be possible for at least two more weeks due to the unavailability of judges on the bench.
After seeking assurances from the AGP for no military trials of civilians until the case had been resolved, he said the order for the provision of facilities to suspects in custody would remain in place. “It would have been great if everyone abided by the law and Constitution,” he remarked. “We respect those who cooperate with the court, and also those who do not cooperate with us,” he added, while adjourning proceedings indefinitely.
Today’s proceedings
In his arguments, the AGP said the suspects were charged under Section 2-D(1) of the Official Secrets Act. To this, Justice Akhtar said the trial of civilians in military courts was akin to establishing a parallel judicial system, while Justice Afridi sought the AGP’s opinion on Article 175 and Article 175(3) of the Constitution, which deal with the establishment and jurisdiction of courts.
“Court martial doesn’t fall under the jurisdiction of Article 175,” said Awan. Justice Akhtar remarked that fundamental rights could not be left to the “discretion of the legislature,” adding that the concept of fundamental rights is such that the “state cannot take them back even if it wants to.”
Justice Malik, meanwhile, noted that “if military courts are not courts of law, then trials in them are tantamount to the denial of fundamental rights.” However, the AGP argued that military courts were similar to tribunals that dealt with people associated with the armed forces and defense institutions. “Court martial doesn’t come under the courts formed under Article 175, hence, it doesn’t have a right to appeal,” he added.
Awan said if any civilian committed a crime related to the armed forces, they could be tried in military courts. To this, the CJP noted that law and Constitution specified that this law was only applicable to people who fought the armed forces. In response, the AGP read a 2015 SC judgement highlighting that the verdict mentioned attacks on military installations.
“A parallel judicial system has been created for such people,” observed Justice Akhtar. “Exclusive jurisdiction was given to military courts so that no one could question why anti-terrorism courts are not conducting trials,” he said, with Justice Afridi remarking his understanding of the AGP’s arguments was that military courts were not considered courts.
“Are you saying that the Constitution had to be amended in the past because the suspects were not related to the armed forces?” questioned the CJP, adding the argument boiled down to constitutional amendments not being required because of connections between the suspects and the military.
“You want to make fundamental rights of people rigid through military courts,” he observed, adding if a trial was to be conducted over “connection with armed forces,” the court had to see its standard.
The AGP maintained that military courts were essential for action against anti-state elements and terrorists. “We have already taken the court into confidence regarding our decision,” he said, adding there was no attempt to overturn the Constitution or the law. He recalled that the May 9 riots had been witnessed by everyone, adding the Army, despite attacks on its installations, had not opened fire on civilians.
Justice Naqvi asked why the military didn’t open fire, to which the AGP replied “we don’t want a situation in future where they [military] is forced to do this.” This is why, he stressed, the trials were being conducted and assurances being granted to the apex court.