ISLAMABAD:
The Constitutional Chamber of the Supreme Court on Wednesday asked the authorities for clarification on why the Army Law was not applied to cases related to the attack on the Army Public School (APS) in 2014.
The constitutional bench, headed by Justice Aminuddin Khan, heard an intra-judicial appeal challenging the apex court’s decision against the trial of civilians by the military court. Defense Ministry lawyer Khawaja Haris continued his arguments.
During the hearing, Justice Jamal Khan Mandokhail questioned the need to amend the Constitution to allow military trials for terrorism, asking why such trials had not been conducted in the past, despite the existence of the law on the army.
Haris argued that the nature of the crime determined whether the trial would be held in a civilian or military court. He stressed that if a civilian’s crime was linked to the armed forces, it fell within 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. Haris clarified that military courts could try terrorist acts linked to religious or terrorist groups under the Army Law, with or without constitutional amendments.
Justice Mandokhail inquired about handling important cases like the 2014 APS attack within the existing legal framework. Haris said the APS attack was linked to the military, but had not been directly tried in military courts.
He noted that the constitutional amendment covered additional crimes beyond military duties. Justice Mandokhel asked whether a terrorist had kidnapped a soldier and where the trial would take place.
The Defense Ministry lawyer responded that if the trial could not take place in the military court, the question would arise how this hypothesis could be linked to the case in question.
Justice Muhammad Ali Mazhar noted that the court was not focusing on the nature of the crime but only had to see whether the relevant sections of the Army Act were in conformity with the Constitution.
Justice Aminuddin Khan said the Supreme Court must review the constitutional status of the law and the decision. Justice Mazhar said the court should consider comparative analysis as the modus operandi adopted for the military trial.
Haris argued that if the Supreme Court upheld Sections 2(D)(1) and 2(D)(2) 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 its approval. The constitutional bench then adjourned the hearing till Thursday (today).
