ISLAMABAD:
The Constitutional Chamber of the Supreme Court on Wednesday asked authorities to clarify why the Army Law was not applied to cases related to the 2014 Army Public School (APS) attack.
The constitutional court, headed by Justice Aminuddin Khan, heard an intra-judicial appeal challenging the high court’s decision against the trial of the civilians in 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 and asked why such trials were not held in the past, despite the existence of the Army Law.
Haris argued that the nature of the crime determined whether the trial would be held in a civilian or military court. He noted that if a civilian’s crime was linked to the armed forces, it fell under the jurisdiction of military courts.
Justice Mandokhail, however, suggested that the intention of the perpetrator should be considered to determine 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 asked about the handling of important cases like the 2014 APS attack under the existing legal framework. Haris claimed that the APS attack was military-related, but he was not tried directly before military courts.
He noted that the constitutional amendment covered additional crimes in addition to military duties. Judge Mandokhel asked if a terrorist had kidnapped a soldier and the trial will be held there.
The Defense Ministry lawyer responded that supposedly, if the process could not be carried out in the military court, the question would arise as to how the hypothesis would link it to the case in question.
Justice Muhammad Ali Mazhar noted that the court was not focusing on the nature of the offence, but only had to check whether the relevant sections of the Army Act were in consonance with the Constitution.
Justice Aminuddin Khan said the Supreme Court had to review the constitutional status of the law and the decision. Justice Mazhar said the court would have to 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, challenges before military courts should be dismissed. The court also referred to the 21st Constitutional Amendment, which allowed military trials for terrorism cases after the APS attack.
Justice Naeem Akhtar Afghan noted that the amendment had been the subject of parliamentary debate and applied judicial reasoning, while Justice Hassan Azhar Rizvi highlighted the emotional context in which the amendment had been passed.
Khawaja Haris defended parliament’s role in passing the amendment, acknowledging the crucial role played by the former Senate President in its passage. The constitutional court then adjourned the hearing until Thursday (today).
