ISLAMABAD: The Sindh Bar Council (SBC) has approached the Supreme Court against the Pakistan Army (Amendment) Act 2023 and Official Secrets (Amendment) Bill 2023, contending that since both lack the presidential assent, they remain bills and have not become law.

Additionally, it became one of many petitioners before the apex court on Wednesday, challenging the trial of civilians in military courts.

The petition was jointly filed by the SBC, its Vice Chairman Azhar Hussain, Chairman Executive Committee Naeemuddin Qureshi and member Judicial Commission of Pakistan Syed Haider Imam Rizvi.

Drafted by senior counsel Salahuddin Ahmed, the petition is the fifth such plea moved before the Supreme Court. Earlier, former Chief Justice of Pakistan (CJP) Jawwad S. Khawaja through his counsel Khwaja Ahmad Hosain, PTI Chairman Imran Khan, five members of civil society through lawyer Faisal Siddiqi as well as former law minister Aitzaz Ahsan had moved similar petitions before the SC.

SBC points out president has publicly denied giving assent to both bills; petition also opposes trial of civilians in military courts

Headed by CJP Umar Ata Bandial, a six-judge bench is hearing the petitions. At the last hearing on Aug 3, the bench postponed proceedings for an indefinite period.

The SBC argued the President had publicly stated that he did not sign the two bills since he disagreed with them and had asked his staff to return them unsigned within the stipulated time to make them ineffective.

On the other hand, the Law Ministry asserted that the bills were received by the presidency on Aug 2, 2023 and Aug 8, 2023, respectively. The President is permitted to assent or return the bills within ten days after they were presented to him.

Even if the date of receipt is counted as the first day of the period available to the president, at the very earliest, assent could only have been deemed on Aug 12 and Aug 18, respectively, the petition argued. However, the gazette notifications state the President was deemed to have assented to the Army Bill 2023 with effect from Aug 11 and Official Secrets Act Bill on Aug 17.

Thus no such deeming is possible on these dates, the petition contended, adding for that reason alone the purported legislation was unconstitutional, colourable and non-est. Even otherwise there is no concept of deemed assent under Article 75(1) of the Constitution since assent must be formally expressed in writing, the petition emphasised, adding the President reflects the unity of the federation and not permitted to lead a political party.

Thus the admitted absence of express presidential assent to both these bills suggests that these are not laws, the petition said, adding the SC should declare the PAA (Amendment) Act 2023 and Official Secrets (Amendment) Act (OSA) 2023 lack the presidential assent under Article 75(1) of the Constitution and thus nullity in the eyes of law.

Or, it said, the SC could alternatively declare that both PAA and OSA were ultra vires of the Constitution insofar as they purport to further extend the reach of military laws and military tribunals over civilians including retired military personnel and thus of no legal effect.

Access to justice

The petition pointed out that after the 18th Constitution Amendment, the right to fair trial and due process in the determination of any criminal charge has become a constitutional guarantee on account of specific proviso in Article 8(3).

The Supreme Court has already held that access to justice is a fundamental right and it includes the right of trial before an independent court or tribunal within the adjudicatory hierarchy. It has also held that military trials of civilians are not permitted within the scheme of Constitution and military tribunals cannot be considered truly independent of the executive nor are they within the adjudicatory hierarchy envisaged under the Constitution.

The fresh petition requested the SC to declare the trial of civilians under the military laws and military tribunals as violative of Articles 4, 10, 10A, 25, 175, 202 and 203 of the Constitution as well as Pakistan’s international treaty and convention obligations.

The petition pleaded that Sections 2(d), 59(4) and 94 of the Pakistan Army Act (PAA) 1952 and Sections 2(dd), 71(3) and 1,234 of the Pakistan Airforce Act 1953, Sections 2(3), 78(3) and 107 of the Pakistan Navy Ordinance 1961 were ultra vires of the Constitution and therefore the SC strike it down or in the alternative read down these provisions, which means that these provisions were no longer a valid law.

The SC should also declare that Sections 4(c), 8, 9, 10 and 11 of the amended PAA and Sections 2, 3 and 7 of the OSA were illegal and against the Constitution and therefore liable to be struck down, the SBC stated.

The petition requested the Supreme Court to direct the transfer of custody of all suspects involved in the May 9 and 10 violence to appropriate (civil) courts of criminal jurisdiction and quash any charges under the OSA and the PAA against them and restrain the respondents from trying them under the military laws before the military tribunals.

Published in Dawn, September 7th, 2023