Former chief justice of Pakistan (CJP) Jawwad S Khawaja on Tuesday moved the Supreme Court (SC) against the trial of civilians in military courts and demanded that it should be declared “unconstitutional”.

The petition, filed through Advocate Khwaja Ahmad Hosain, sought to declare that “sections 2(1)(d)(i) and (ii) of the Pakistan Army Act 1952 are inconsistent with the fundamental rights conferred by the Constitution and are void and struck down”.

The plea, which has not been fixed for hearing yet, named the Federation of Pakistan through secretaries of law and justice, interior, defence, and chief secretaries of Punjab, Khyber Pakhtunkhwa, Sindh and Balochistan as respondents in the case.

It questioned how “civilians who are not on active service can be subjected to trial by military courts for alleged crimes”.

“The petitioner submits that they cannot. To the extent that such trial is contemplated by law, such law is unconstitutional and liable to be struck down.”

The plea, a copy of which is available with Dawn.com, contended that proceedings of a court martial were only appropriate and lawful in the case of army officers. “Their purpose is to maintain discipline within the forces. There is no basis on which they may be extended to civilians unless they are in active service.”

It maintained that the challenge through the application was restricted to those provisions of the law that enabled civilians, who were not on active service, to be court-martialled.

The petition recalled that the government and armed forces had indicated to court martial certain civilians for their involvement in an offence allegedly committed on May 9 — when public and private properties, including army installations, were vandalised amid protests sparked by the arrest of PTI chief Imran Khan.

“In spite of the fact that the allegations revolve around attacks on or offences in respect of property within cantonments or so-called military installations, the petitioner submits that any such alleged offences by civilians may only be tried by ordinary criminal courts,” it stated.

The case of the petitioner, the plea highlighted, was that every citizen in the case of a criminal charge was entitled to fair and due process. “This fundamental right is enshrined in Article 10-A of the Constitution and this right is violated when civilians are court-martialled.”

It pointed out that the recognised ingredients of a fair trial included “an open hearing by a competent and independent forum and the right to counsel of choice”. However, the petition contended that these principles were compromised in the case of military proceedings.

The petition further stated that the primary purpose of the Pakistan Army Act, 1952, was to maintain discipline within the armed forces and when an individual joined the armed forces they consented to be subject to the system of military discipline.

“It is unjustifiable for civilians to be subjected to a system of military discipline. They have not consented to the same. In the context of criminal prosecution and trial, court martial proceedings against civilians violate fundamental rights and do not enjoy protection under Article 8(3) of the Constitution.”

Furthermore, the petitioner said that the plea fell within the scope of Article 184(3) of the Constitution of Pakistan, which sets out the Supreme Court’s original jurisdiction and enables it to assume jurisdiction in matters involving a question of “public importance” with reference to the “enforcement of any of the fundamental rights” of Pakistan’s citizens.

Referring to statements released by the army regarding trials in military courts, the petition stated that the language used indicated that “a view has already been formed by the army authorities and military command that ‘irrefutable evidence’ exists in these cases.”

“In the presence of such a view, it will not be possible for the accused to receive a fair trial from army officers who operate under and are subject to the discipline of the army authorities.

“These statements indicate that the alleged incidents are perceived by the army authorities as an attack on the military and its installations. In the presence of such perception, army officers presiding over court-martial trials would effectively be a judge in their own cause,” the petition stated.

It added that the government too had not opposed this and noted “it appears likely that the list of civilians to be tried in military courts will increase given the resolution passed by the National Assembly”.

The petition also listed various amendments made to the Pakistan Army Act, 1952, over the years and said the present law “only contemplates the trial of civilians not on active service by military courts in two situations: seducing or attempting to seduce any person subject to this Act from his duty or allegiance to the government or having committed an offence under the Official Secrets Act 1923”.

It further highlighted that the courts in Pakistan had over the years declared attempts to “extend the jurisdiction of military courts to civilians as unconstitutional” and referred to a number of cases from the past.

The plea pointed out that several human rights violations had been reported during military trials in the country and that such trials conflicted with Pakistan’s human rights obligations under international law.

Subsequently, it prayed that the respondents should be directed to maintain and furnish a list of all civilians in military custody and the details of where they were being detained.

“Declare that any proceedings against civilians on the basis of the impugned sections are unlawful and direct that such civilians be transferred to the competent civilian authorities for appropriate proceedings before ordinary criminal courts,” the plea demanded.

It added that as an interim measure, all the proceedings against civilians in military courts should be restrained till an order is passed.

The former CJP’s petition comes days after PPP leader Aitzaz Ahsan filed a similar petition in the apex court, which is yet to be fixed for hearing.

The veteran politician’s plea also urged the SC to “declare that Section 94 of the Army Act and the 1970 Rules are inherently discriminatory, in direct violation of, inter alia, Articles 25 and 175 of the Constitution and void”.