• Army’s Judge Advocate General branch currently doing ‘homework’ on suspects
• Legal experts say ordinary courts can try such cases if empowered by govt

ISLAMABAD: Though the Supreme Court has adjourned the hearing of petitions challenging the trials of civilians in military courts, the army’s legal wing is still in the process of completing codal formalities before formal proceedings against the 102 suspects in their custody can begin, Dawn has learnt.

Informed sources said that the military’s legal department has gathered evidence against those in custody, while it is building cases against those still at large.

Earlier this week, Chief Justice of Pakistan Umar Atta Bandial had expressed the hope that the military would not begin legal proceedings against those in its custody until the court had disposed of the petitions — assailing military trials of civilians — that are currently pending before the CJP-led bench.

However, on the same day, the military’s chief spokesperson confirmed custody of 102 suspects, saying they would be tried under sections 3, 7, and 9 of the Official Secrets Act read with Section 2(1)(d) of the Pakistan Army Act.

Ahmer Bilal Soofi, a noted legal expert, told Dawn that in order to legitimise the trials of civilians under the Pakistan Army Act, the Judge Advocate General (JAG) branch has to fulfill certain requirements.

In the Supreme Court, Attorney General for Pakistan Mansoor Usman Awan said the cases against the detained civilians were still at the investigation stage, and also assured the bench that no accused would be charged with the commission of any offence that attracts either capital punishment or a lengthy sentence.

He also argued that the Pakistan Army Act Rules 1954 state that accused persons are to be provided copies of prosecution evidence and granted time to examine it and engage counsel after the completion of investigations.

Since this stage has not arrived yet, therefore no military trial of any detained civilian has so far commenced, sources said.

Relevant sections

One of the tasks before the JAG branch is to decide which sections will apply to which suspect.

Sources told Dawn that during the events of May 9, violent protesters not only trespassed into prohibited areas, but also damaged and looted military property in addition to desecrating monuments.

They claimed that these actions made such persons liable to be tried under the Official Secrets Act, and consequently the army act.

Sections 3 and 3A of the secrets act deal with “restriction against photographs, sketches, etc., of prohibited and notified areas”. Section 7 is about “interfering with officers of the police or members of the armed forces of Pakistan, while Section 9 is related to “Attempts, incitements, etc.”

Section 2(1)(d) of the Pakistan Army Act states: “persons not otherwise subject to this Act who are accused of seducing or attempting to seduce any person subject to this Act from his duty or allegiance to government, or having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan” can be tried under the secrets act.

So, the Official Secrets Act of 1923 actually empowers the military to try civilians under the army act.

No precedent in civil courts

However, human rights groups insist that under previous military regimes - and even under some democratic governments - military courts have been used to silence opponents’ voices. This is why several quarters are calling for the cases to be tried in established courts.

But legal experts Dawn spoke to said that civilian courts had perhaps never tried cases under this law, as such matters have been the exclusive domain of military courts in the past.

A former judge of Islamabad High Court (IHC) with vast experience in the district judiciary as well, said that civilians had never been tried for breaching official secrets in an established court.

He said that while there was a procedure for conducting trials under this act in civilian court – which involved the government notifying a judge or magistrate as the presiding officer – but to the best of his knowledge, the government had never issued any notifications to constitute such a court.

Advocate Raja Inam Ameen Minhas, a criminal law expert, told Dawn that in his three decades of legal practice, he had never even read about a case registered with the Federal Investigation Agency, police, or other law enforcement agency, under the Official Secrets Act.

But there are a number of instances on record when civilians have been tried by the military for breaching national secrets.

During his press conference on June 26, Maj-Gen Ahmed Sharif Chaudhry noted that the army act had been part of the legal framework for several decades, and that hundreds of cases have been decided under this law.

This is true; under the previous PTI government alone, at least 25 civilians were court-martialed for violating the secrets act. But these were hardly transparent and, according to a lawyer familiar with proceedings, violated a good number of the suspects’ fundamental rights.

“The suspects were taken into custody and put on trial in secret. Out of them, three were awarded the death sentence,” retired Lt-Col Inamur Rahim told Dawn.

A former JAG official, Advocate Rahim was the counsel in over a dozen such cases.

Talking to Dawn, he said that in all these cases, articles 4, 9, 10 and 10A of the Constitution were violated as neither their counsel nor their families were intimated about the suspects’ arrest and trial.

Journalist Idrees Khattak and Hassan Askree, the son of a retired two-star general, were among those convicted in such a manner.

Published in Dawn, June 29th, 2023