Supreme Court Hears Appeal Against Civilians’ Trials in Military Courts

Islamabad:A seven-member constitutional bench of the Supreme Court, headed by Justice Aminuddin Khan, continued hearing an intra-court appeal challenging the decision regarding the trial of civilians in military courts.

During the hearing, the counsel for the Ministry of Defence, Khawaja Haris, began his arguments, to which Justice Aminuddin advised him to conclude his arguments by tomorrow. Justice Aminuddin further directed Khawaja Haris to keep the arguments brief on the reasons behind the transfer of certain cases to military courts.

Khawaja Haris informed the court that the Supreme Court had declared Section 59(4) of the Army Act invalid. Justice Jamal Mandokhail noted that the Army Act mentions several crimes, and as per the Act, these crimes apply to military officers. In response, Khawaja Haris clarified that the Army Act would be considered in light of the Official Secrets Act under sections 2D(1) and 2D(2), with civilians’ trials falling under Section 31D of the Army Act.

Justice Jamal Mandokhail pointed out that Section 31D of the Army Act pertains to the incitement of military personnel from performing their duties. Khawaja Haris further argued that military courts are recognized by the Constitution, to which Justice Mandokhail remarked that it is important to determine whether a case related to staying away from prayer or being intoxicated should be tried in a military court.

Justice Musarrat Hilali also noted that the Constitution validates various tribunals, and the focus should be on which cases should be heard where and how. Justice Mandokhail then inquired whether a civilian trial in a military court is considered a court-martial, to which Khawaja Haris confirmed that a court-martial only happens in military courts.

A key question raised by Justice Musarrat Hilali was regarding the punishment under the Army Act for an Army officer who suspends the Constitution. Khawaja Haris referred to Article 6 of the Constitution, which deals with the suspension of the Constitution and stipulates punishment. Justice Mandokhail further questioned whether judges, in the event of an unconstitutional act, also fall under Article 6, referencing the Pervez Musharraf case where judges’ names were initially included in the treason trial but later removed.

Justice Hassan Azhar Rizvi raised concerns regarding recent amendments to the Army Act in August 2023, asking whether the amendments could be applied to incidents that occurred in May 2023, specifically in relation to the trials of individuals involved in the May 9th events.

The constitutional bench adjourned the hearing until tomorrow, with Khawaja Haris set to continue his arguments. It is worth noting that Khawaja Haris had been unable to complete his arguments in the previous hearing on Friday, leading to the adjournment of the hearing until today, January 13.