ISLAMABAD: In the ongoing hearing of intra-court appeals against civilian trials in military courts, a seven-member constitutional bench of the Supreme Court, led by Justice Aminuddin Khan, raised critical questions regarding the scope and application of military court trials.
The bench questioned why incidents like the Army Public School (APS) attack, which involved the Army Act and criminal conspiracy, did not result in trials under military courts.
Justice Aminuddin remarked, “While we acknowledge the existence of military courts, we must examine the ‘patch’ that has been applied to the justice system.” Other members of the bench included Justices Jamal Mandokhail, Mohammad Ali Mazhar, Hassan Azhar Rizvi, Musarrat Hilali, Naeem Akhtar Afghan, and Shahid Bilal Hassan.
Key Discussions
The Defense Ministry’s lawyer, Khawaja Haris, argued that military courts are established under the Army Act to try offenses linked to the armed forces. He clarified that the current discussion is about crimes under the Army Act, not about general civilian trials. Haris explained that the trial’s jurisdiction depends on the nature of the crime rather than the defendant’s intent.
Justice Jamal Mandokhail questioned whether the intent behind the crime would influence the decision to try an individual in a military court. Haris responded that intent is secondary; if the crime falls under the Army Act, it is tried in a military court.
Justice Mandokhail also highlighted the circumstances surrounding the 21st Constitutional Amendment, enacted after the APS attack to enable military trials for terrorism. He questioned why such trials required a constitutional amendment when the Army Act was already in place.
Justice Hassan Azhar Rizvi referred to former Senate Chairman Raza Rabbani, who famously wept after voting in favor of the 21st Amendment, saying, “Those tears are now part of history.” Justice Rizvi emphasized the emotional and political complexities surrounding the amendment and its long-term implications.
Broader Implications
The bench explored why attacks on military installations and other similar incidents have not consistently been tried under military courts. The APS attack, they noted, marked a turning point but also revealed gaps in the framework that necessitated constitutional changes.
Khawaja Haris argued that crimes like the May 9 attacks, which targeted military installations, fall under the jurisdiction of military courts and could be tried even without amendments like the 21st. He referenced past judgments to support the legal foundation for military court trials in such cases.
Adjournment and Continuation
The hearing remained inconclusive, with Khawaja Haris set to continue his arguments tomorrow (Thursday). The case delves into critical constitutional questions about the balance between civilian justice and military tribunals, particularly in handling terrorism and crimes linked to the armed forces.
Justice Mandokhail summarized the court’s concern, calling for a deeper examination of the “patch on velvet” that military courts represent in Pakistan’s legal framework. The bench is expected to continue probing the constitutional implications and practical application of military trials in tomorrow’s session.
