January 15, 2025
By Rana Malhi
ISLAMABAD
On Wednesday, January 15, the seven-member Constitutional Bench of the Supreme Court (SC) of Pakistan, headed by Justice Aminuddin Khan, heard an intra-court appeal challenging the trial of civilians in military courts.
During proceedings, the counsel for the Ministry of Defense, Advocate Khawaja Haris, clarified that the issue was not about the trial of civilians, but about trying the offenses under the Army Act. He stated that if an offense has any connection to the provisions of the Army Act, it warrants a military trial.
Justice Jamal Khan Mandokhail inquired what the “connection” was, to which Advocate Haris explained that any offense linked to the Army Act was the specific connection.
Justice Mandokhail further asked whether the intent behind the offense would also be considered in such cases, to which Justice Aminuddin Khan responded that the accused could use the absence of intent as a defense in a military trial.
Advocate Haris emphasized that if a clear connection to the Army Act existed, then the trial would resultantly proceed in a military court.
Justice Muhammad Ali Mazhar remarked that the legitimacy of the trial could be assessed during the process, adding that if the connection to the Army is not evident, the case could become complicated.
Advocate Haris stressed the distinction between laws governing war and terrorism and their specific applications.
21st Constitutional Amendment
Advocate Haris also pointed out that the 21st Amendment was enacted under specific circumstances, such as after the 2016 Army Public School (APS) Peshawar attack.
Justice Mandokhail remarked that the Army Act and the Official Secrets Act were already in place at the time, however the perpetrators of the attack were not tried in military courts. He also inquired whether a “connection” to offenses under the Army Act were established in proceedings related to the incident.
Advocate Haris responded affirmatively, clarifying that although a connection existed, a constitutional amendment was still required to try the terrorists involved.
Justice Mazhar highlighted that the 21st Amendment had expanded the jurisdiction of military courts.
The court inquired where the trials of incidents involving terrorist groups or acts committed in the name of religion would take place, to which the Ministry of Defence’s lawyer responded that under the Army Act, such crimes would be tried in military courts irrespective of constitutional amendments.
Justice Mazhar inquired about the procedure for military trials, asking whether the accused had the right to choose a lawyer and present evidence. He added that even without constitutional amendments, military courts could try specific offenses.
During proceedings, the role of former Chairman of the Senate Raza Rabbani in the passage of the 21st Amendment was also discussed. Justice Hassan Azhar Rizvi remarked that Rabbani had voted in favor of the amendment while shedding tears, a moment that has become part of history.
Justice Mandokhail said Rabbani was a man of principles, and his displeasure after voting reflected his steadfastness to those principles.
Justice Mazhar emphasized that the court’s primary focus was to determine whether the relevant sections of the Army Act align with the Constitution. If the SC upholds the validity of sections 2(1)(d) and 2(d)(2) of the Army Act under Article 8(3) of the Constitution, petitions against military courts could be rendered inadmissible.
Haris noted that the bench reviewing the 21st Amendment had acknowledged section 2(1)(d), which has been part of the Army Act since 1967.
Justice Mazhar further emphasized the necessity of a fair trial under Article 10-A of the Constitution.
Justice Mandokhail remarked that the punishment would depend on the nature of the offense, and the forum would be determined as per the applicable laws.
The court adjourned the hearing for January 16, with the Ministry of Defense counsel, Khawaja Haris, set to continue his arguments.