The member of the top court's Constitutional Bench, Musarrat Hilali, on Monday raised a critical question, inquiring about the punishment an army officer would face for holding the Constitution in abeyance.
Justice Hilali raised the question during the hearing of appeals challenging the trial of civilians in military courts. The hearing was resumed before the constitutional bench, headed by Justice Amin-Ud-Din Khan.
Counsel for the Ministry of Defense, Khawaja Haris, resumed his arguments, highlighting that the Supreme Court had previously declared Section 59(4) of the Army Act null and void.
Justice Jamal Khan Mandokhail noted that the Army Act outlines several offenses, all applicable to military personnel.
In response, Haris contended that the trial of civilians falls under Section 31(D) of the Army Act, which provides constitutional backing for military courts.
However, Justice Mandokhail clarified that Section 31(D) pertains specifically to acts of inciting soldiers to neglect their duties, emphasizing the need to determine who is eligible for trial in military courts.
Justice Hilali further highlighted that the Constitution acknowledges various tribunals, underscoring the importance of clarifying which cases fall under their jurisdiction and procedural mechanisms.
Justice Mandokhail questioned whether the trial of a civilian in a military court qualifies as a court martial. In response, Haris clarified that military courts conduct court martials.
Justice Hilali then inquired if there was any punishment for an army officer who suspends the Constitution, asking whether the Army Act prescribes penalties for such actions.
Haris stated that Article 6 of the Constitution outlines punishments for suspending the Constitution, emphasizing that the Constitution supersedes all laws.
He added that the Army Act also addresses violations of the military oath.
Justice Mandokhail posed another question, asking whether judges who validate martial law could also fall under the scope of Article 6 for endorsing unconstitutional actions.
Justice Muhammad Ali Mazhar referred to the case of Pervez Musharraf, highlighting that judges were initially named in the treason trial but were later excluded.
Justice Mandokhail further questioned the implications of violating evidentiary rules in military trials, while Justice Azhar asked how such violations could be assessed without access to the trial records.
Haris informed the Supreme Court that it could review cases where legal requirements were not fulfilled.
Justice Azhar sought clarity on the standards of evidence in military trials, questioning whether witnesses in field court martials were cross-examined and if defense witnesses were allowed to testify.
In response, Haris noted that an appeal against the Supreme Court’s earlier ruling under Article 184(3) was pending and that the court could not examine evidence or review trials without first addressing its jurisdiction.
Justice Azhar acknowledged that a review might still be possible.
Justice Mandokhail pointed out that civilians were initially tried in civilian courts under the Official Secrets Act.
Justice Azhar highlighted that the Official Secrets Act was amended on August 11, 2023, while the incident in question occurred in May 2023, raising concerns about the retrospective application of the law.
Haris confirmed that the amendment was applied retrospectively.
Justice Amin-Ud-Din directed Haris to conclude his arguments by the following day, specifying which cases had been transferred to military courts and providing a concise explanation.
The Supreme Court then adjourned the hearing on the appeal against trying civilians in military courts until Tuesday.