ISLAMABAD: The Supreme Court asked what punishment an army officer would face if he was caught suspending the country’s constitution, after hearing intra-judicial complaints regarding civil trials in military courts. The question was raised on Monday by Justice Musarrat Hilali, who is part of the constitution bench of the apex court headed by Justice Amin-Ud-Din Khan. Khawaja Haris, counsel for the Ministry of Defence, argued that the Supreme Court had also declared Section 59 para. 4 of the Army Act as invalid. Justice Jamal Khan Mandokhail said the Army Act mentions several crimes, all of which involve military officers. To this, Haris argued that the trials of civilians fall under Section 31-D of the Army Act, which has constitutional recognition for military courts. However, Justice Mandokhail clarified that Section 31-D pertains to inciting soldiers to dereliction of duty and the question to be addressed is 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 Mandokhail further questioned whether the civilian military trial was considered a court-martial. In response, Haris confirmed that military courts are run by military courts. Justice Hilali then asked if there was any punishment for an army officer who suspends the constitution and asked if the Army Act provides punishment for such an act. Haris replied that Art. 6 of the Constitution prescribes a penalty for suspension of the Constitution because the Constitution takes precedence over all laws, while the Army Act also deals with breach of oath. Justice Mandokhail went on to ask another question: If the judiciary follows martial law, do judges who approve unconstitutional actions also fall under Article 6? Justice Muhammad Ali Mazhar referred to the Pervez Musharraf case where judges were originally appointed in a treason trial but were later disqualified. Justice Mandokhail also inquired about the consequences of violating the Evidence Act in military trials. Justice Azhar asked how they could assess whether the rules of evidence had been broken without reviewing court records. Haris responded that the oversight committee can review cases where legal requirements are not met. In addition, Justice Azhar expressed a desire to understand the standards of evidence in military trials and asked whether witnesses in the field court-martial were cross-examined and whether defense witnesses had the right to appear. To this, Haris replied that against the decision of the Supreme Court under Art. 184 par. 1 letter 3 and the court cannot review the process or review the standards of proof without considering its jurisdiction. Justice Azhar agreed that a review may still be possible. Justice Mandokhail then mentioned that the civilians were initially tried in civilian courts under the Official Secrets Act. Justice Azhar added that the Official Secrets Act was amended on August 11, 2023, while the incident took place in May 2023, questioning whether the law can be applied retrospectively. Harris confirmed that the amendment applies retroactively. Justice Amin-Ud-Din advised Haris to wrap up his arguments by the next day, outlining which cases were referred to military courts and why, and to be brief. The Supreme Court then adjourned hearing appeals against civilians tried by military courts until Tuesday.
