ISLAMABAD: The Supreme Court sought clarification on the transfer of civilian cases to military courts under the amended Army Act.
A seven-member constitutional bench, headed by Justice Aminuddin Khan, on Monday, heard the intra-court appeals (ICAs) challenging the trial of civilians in military courts. Justice Aminuddin asked Khawaja Haris, who represented the Ministry of Defence, to conclude his arguments by tomorrow (Tuesday). He also told him to furnish a concise explanation of cases transferred to military courts and why? Khawaja Haris was also ordered to address the queries of the bench members.
The Ministry of Defence’s lawyer submitted that he would address the questions later on.
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The bench expressed concerns regarding the standard of evidence presented in military trials and questioned the implementation of recent amendments to the Army Act on past incidents, particularly, those related to the events of May 9.
Justice Hasan Azhar Rizvi underscored the need to assess whether military trials of civilians adhered to legal standards, stating, “We want to see whether the accused were allowed to present witnesses in their defense or not. We also want to review the quality of the evidence presented.”
Justice Jamal Khan Mandokhail said that several offences are listed under the Army Act, but all apply exclusively to military officers. He noted that in the present case even all the provisions of the Army Act were not followed.
Khawaja Haris argued that the Supreme Court had previously invalidated Section 59(4) of the Army Act.
Justice Mandokhail observed that the Army Act mentions several crimes, all of which apply to military officers. Haris contended that civilians’ trials fall under Section 31-D of the Army Act, which has constitutional recognition for military courts.
However, Justice Mandokhail clarified that Section 31-D relates to encouraging soldiers against performing their duties, and the issue to be addressed is who should face trial in military courts.
Justice Mussarat Hilali pointed out that the Constitution recognises various tribunals, stressing the need to examine the jurisdiction, location, and procedure for trying cases. “The issue here is procedural— who will conduct the trial,” she said.
Justice Mandokhail questioned whether civilians’ trials in military courts could be classified as court-martials. The counsel said that trial before the military courts is proceedings of court martial.
Justice Hilali raised the absence of a specific punishment in the Army Act for suspending the Constitution, asking, “What punishment does the Act prescribe for an army officer who suspends the Constitution?”
Khawaja Haris replied that Article 6 of the Constitution prescribes punishment for such acts and takes precedence over all laws. He also told that the Army Act includes penalties for breaches of the oath.
Justice Mandokhail questioned if the judiciary has validated martial law, do judges who endorse unconstitutional actions also fall under the scope of Article 6?
Justice Muhammad Ali Mazhar mentioned the case of Pervez Musharraf, saying that in the treason case against former military dictator General Pervez Musharraf (retired) the judges were initially named in the treason trial but were later excluded.
Justice Mandokhail also inquired about the implications of violating the law of evidence in military trials.
Justice Syed Hassan Azhar Rizvi asked how they could assess if evidence rules had been violated without reviewing the trial records.
Haris responded that the SC can review cases where legal requirements are not met. He told that in Sheikh Liaquat Hussain case there are four types of martial courts, adding in that case the civilians were tried by the military courts under other laws than the Army Act.
Justice Azhar said he wanted to understand the evidence of military trials. He asked whether witnesses in field court martial were cross-examined and whether defence witnesses had the right to appear. He questioned whether the judiciary could review recent decisions of military courts and determine if the law was implemented correctly during the trials.
Khawaja Haris replied that an appeal against the apex court’s ruling under Article 184 (3) was pending, and the court cannot review the trial or examine evidence standards without considering its jurisdiction.
Justice Azhar agreed that a review might still be possible. Justice Mandokhail then mentioned that civilians were initially tried in civilian courts under the Official Secrets Act.
Justice Azhar remarked that Official Secrets Act was amended on August 11, 2023, while the incident occurred in May 2023, questioning whether the law could be applied retrospectively. Haris confirmed that the amendment applied retrospectively.
The hearing is adjourned until today (Tuesday).
Copyright Business Recorder, 2025
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