ISLAMABAD: While hearing the intra-court appeals related to the trials of civilians in military courts, the Supreme Court has asked what punishment will be given to an army officer if he is found involved in suspending the constitution of the country.
This question was raised by Justice Musrat Hilali, who is part of the Constitution Bench of the Supreme Court headed by Justice Aminuddin Khan on Monday.
Defense Ministry lawyer Khawaja Haris argued that the Supreme Court has also invalidated Section 59 (4) of the Army Act.
Justice Jamal Khan Mandukhel said that the Army Act mentions several crimes, all of which apply to military officers. Harris argued that trials of civilians fall under Section 31-D of the Army Act, which constitutionally recognizes military courts.
Justice Mandukhel, however, clarified that Section 31-D deals with incitement to soldiers against the performance of their duties, and to resolve the issue of who should face trial in military courts.
Justice Hilali also pointed out that the Constitution recognizes many tribunals, and the focus should be on which cases can be heard where and how.
Justice Mandukhel further questioned whether the military trial of a civilian is considered a court martial. In response, Harris confirmed that military courts conduct courts-martial.
Justice Hilali then inquired whether there was any punishment for an army officer who suspended the constitution, asked whether the Army Act prescribed any punishment for such an act.
Harris replied that Article 6 of the Constitution prescribes the penalty of suspension because the Constitution prevails over all laws while the Army Act also addresses breach of oath.
Justice Mandukhel further raised the question that if the judiciary has declared martial law as valid, do judges who approve unconstitutional measures also come under the ambit of Article 6?
Justice Muhammad Ali Mazhar referred to Pervez Musharraf’s case, where the judges were initially named in the treason trial but later dropped. Justice Mandukhel also inquired about the implications of violation of evidence law in military trials. Justice Azhar inquired how he could judge if the rules of evidence were violated without going through the trial records.
Harris responded that the Supreme Court can review cases where the legal requirements are not met.
Additionally, Justice Azhar expressed his desire to understand the standard of evidence in military trials, asking whether witnesses were cross-examined at field courts-martial and whether defense witnesses had the right to appear.
To this Harris replied that under Article 184(3) an appeal is pending against the decision of the Supreme Court, and the court cannot review the trial or standard of evidence without considering its jurisdiction. is
Justice Azhar agreed that revision was still possible. Justice Mandukhel then mentioned that initially, cases of ordinary citizens were tried in civilian courts under the Official Secrets Act.
Justice Azhar added that since the Official Secrets Act was amended on August 11, 2023, while the incident took place in May 2023, the question is whether the law can be applied retrospectively. Harris confirmed that the amendment applied retroactively.
Justice Aminuddin advised Haris to finish his arguments by the next day, explain which cases were transferred to military courts and why, and keep it brief.
After that, the Supreme Court adjourned the hearing on the appeal against the civilians pending in the military courts till Tuesday.