A seven-judge constitutional bench of the Supreme Court, led by Justice Aminuddin, heard intra-court appeals (ICAs) on Wednesday challenging the apex court’s judgment.
Khawaja Haris, representing the Ministry of Defence, continued his argument by reading the Supreme Court’s verdict, which declared the military trial of civilians null and void. He argued that previous cases had set a precedent allowing civilians to be tried in military courts.
However, Justice Mandokhel raised concerns, questioning why soldiers martyred in terrorist attacks are not tried in military courts. He emphasized that despite the daily sacrifices of soldiers, their cases are not heard in military courts. He also inquired whether individuals with particular thoughts could be tried in military courts and asked which cases fall under Article 8, Clause 3 for military trials.
Khawaja Haris argued that the Supreme Court’s judgment misinterpreted clauses 3 and 5 of Article 8 of the Constitution. Referring to the FB Ali case, which permitted civilians to be tried by military courts, he stated that the two clauses should not be combined. He also pointed out that the FB Ali case involved a trial conducted after Ali’s retirement while he was a civilian, and thus, it differed from the current case, as the crime had occurred during his service.
In response, Justice Mandokhel noted that the suspects in the May 9 incidents were not members of the armed forces, nor were they ex-servicemen, and raised questions about whether civilians could be treated similarly to those involved in incidents like the APS tragedy.
At one point, Justice Mandokhel also revealed that he had been jailed for 14 days, though he did not specify the offense.
Justice Mussarat Hilali inquired whether fundamental rights would be suspended when the Army Act is applied. Justice Mohammad Ali Mazhar asked the defence ministry’s counsel to provide international examples related to this issue. Haris responded that he had precedents and would present them in his argument.
Justice Mazhar also highlighted that laws in the First Schedule could not be altered, stressing the importance of applying the current law in this case.
Justice Mandokhel continued to question whether individuals with certain views could be tried in military courts, and which cases would qualify under Article 8, Clause 3 for military trials.
Haris further argued that civilians who join the armed forces cannot challenge matters in civil courts under fundamental rights, citing Pakistan’s history with 14 years of martial law. He emphasized that the Army Act applies to cases where civilians interfere with the armed forces’ duties.
On October 23, 2023, a five-member larger bench, headed by Justice Ijazul Ahsan and including Justices Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi, and Ayesha A Malik, declared the military trials of civilians involved in attacks on army installations during the riots following former Prime Minister Imran Khan’s arrest on May 9 to be unconstitutional, illegal, and void. By a majority of 4-1, the bench declared that certain sections of the Pakistan Army Act, 1952, were ultra vires the Constitution and had no legal effect. It also emphasized that the cases of the suspects involved in the vandalism would proceed in criminal courts.
The bench further ruled that any actions under the Army Act concerning the individuals identified in the list submitted to the Court, or others in similar positions, would have no legal effect.
However, on December 13, 2023, a six-member bench of the Supreme Court, with Justice Hilali dissenting, suspended the October 23 order on petitions challenging the earlier verdict. The case is now adjourned until Thursday, January 9.
