The Constitutional Bench of the Supreme Court of Pakistan on Wednesday sought clarification from authorities on why the Army Act was not applied in cases related to the Army Public School attack (APS) in 2014.
The constitutional bench, headed by Justice Amin-ud-Din Khan, heard an intra-judicial appeal challenging the decision to try civilians in military courts. Khawaja Haris appeared on behalf of the Ministry of Defense during the proceedings.
During the hearing, Justice Jamal Khan Mandokhail questioned the need to amend the Constitution to allow military trials for terrorism, highlighting the link between civilian crimes and military courts, Express News reported.
He also asks why such trials have not taken place before, despite the existence of the Army Act.
Defense Ministry lawyer Khawaja Haris argued that the nature of the crime determines whether the trial will be held in a civilian or military court.
He stressed that if a civilian crime is linked to the armed forces, it falls under the jurisdiction of military courts.
Justice Mandokhail, however, suggested that the intention of the perpetrator should be taken into account in determining whether the crime was against national interests.
Khawaja Haris clarified that military courts could try terrorist acts linked to religious or terrorist groups under the Army Act, with or without constitutional amendments.
Justice Mandokhail inquired about handling important cases, like the Army Public School (APS) attack in 2014, within the existing legal framework.
Khawaja Haris said the APS attack was linked to the army but had not been directly tried by military courts.
He noted that the constitutional amendment covered additional crimes beyond military duties.
Justice Muhammad Ali Mazhar added that the court was focused on assessing the constitutional status of the law, not the nature of specific crimes.
Khawaja Haris argued that if the Supreme Court upheld Sections 21D and 2D2 of the Army Act, appeals to military courts should be dismissed.
The bench also referred to the 21st Constitutional Amendment, which authorized military trials for terrorism cases after the APS attack.
Justice Naeem Akhtar Afghan noted that the amendment was the subject of parliamentary debate and applied judicial reasoning, while Justice Hassan Azhar Rizvi highlighted the emotional context in which the amendment was approved.
Khawaja Haris defended parliament’s role in passing the amendment, acknowledging the crucial role played by the former Senate president in approving it.
The constitutional bench then adjourned the hearing till Thursday (tomorrow).
