ISLAMABAD: The Supreme Court on Wednesday questioned the government as to why it did not conduct a military trial in the infamous Army Public School (APS) attack despite the presence of the Army Act and its criminal links.
While hearing intra-court appeals on the issue of trial of civilians in military courts, the constitution bench also raised the question of why there was a need to amend the constitution to try terrorism cases in military courts.
The development came as a bench headed by Justice Aminuddin Khan heard an intra-court appeal against the decision to try civilians in military courts, in which Khawaja Haris was representing the Ministry of Defence.
During the hearing, Harris said that the nature of the crime determines where the trial will take place. He said that if a citizen’s crime is related to the armed forces, the case will go to a military court.
Justice Jamal Mandukhel, responding, asked whether the intention behind the crime could also be considered – was the intention against the country’s interests?
The judge also raised the question why the cases of attacks on General Headquarters (GHQ) and Karachi Airbase are not tried in military courts.
He said the answer to that question was provided in the 21st Amendment case. Defense Ministry counsel explained that the 21st Amendment case referred to attacks on GHQs, airbases, military and places of worship.
The lawyer added that the Army Act has mandated that if the crime is related to the army, the case will be tried in a military court. Justice Mandukhel asked for clarification on what “relating to the Army” meant, to which Harris said it referred to offenses directly linked to the Army Act.
Justice Mandukhel then inquired whether the offense related to the Army Act would be reviewed. Justice Amin remarked that during a military trial, the accused can defend by arguing lack of intention.
Justice Muhammad Ali Mazhar added that the intention can be inferred during the trial. Defense Ministry counsel said that if the crime is related to the Army Act, the military court will hear the case.
Justice Mandukhel then inquired whether there is any such connection in the APS attack. In response, Harris confirmed that there was indeed a connection at the time of the APS attack and noted that one connection was with an army officer while the other was with the army.
Justice Mandukhel questioned why the case of APS attack was not tried in a military court despite the existence of Link and Army Act and asked why there was a need for amendment to try terrorism cases in military courts.
To this, the counsel for the Ministry of Defense responded that the amendment covers a wide range of offenses beyond discipline and dereliction of duty.
The judge further asked where the trial of terrorist acts committed in the name of a terrorist group or religion would take place.
In response, Haris said that such cases will be tried in military courts under the Army Act and can be tried in military courts without constitutional amendments.
After hearing the arguments of the lawyers, the Constitution Bench adjourned the hearing of the case till Thursday (yesterday).
The APS attack refers to the massacre of students at the Army Public School in Peshawar on 16 December 2014, in which 147 people, mostly school children, were killed in a horrific terrorist attack.