Justice Jamal Khan Mandokhail has said that several offences are listed under the Army Act, but all apply exclusively to military officers.
He made the remarks during the Supreme Court hearing on intra-court appeals challenging the trial of civilians in military courts, A seven-member constitutional bench, led by Justice Aminuddin Khan, heard the case on Monday.
The session began with Khawaja Haris, representing the Ministry of Defence, presenting arguments. Justice Aminuddin urged Khawaja Haris to conclude his arguments by Tuesday, requesting a concise explanation of which cases were transferred to military courts and why. He added that any questions from the bench on the matter would be addressed later. Khawaja Haris argued that the Supreme Court had previously invalidated Section 59(4) of the Army Act. Justice Mandokhail noted that Section 31D, used for civilians’ trials, relates to incitement to obstruct military duties. Justice Musarrat Hilali pointed out that the Constitution recognises various tribunals, stressing the need to examine the jurisdiction, location, and procedure for trying cases.
“The issue here is procedural-who will conduct the trial,” she said. Justice Mandokhail questioned whether civilians’ trials in military courts could be classified as court-martials. Khawaja Haris confirmed they could. Justice Hilali raised the absence of a specific punishment in the Army Act for suspending the Constitution, asking, “What punishment does the Act prescribe for an army officer who suspends the Constitution?” Khawaja Haris countered by stating that Article 6 of the Constitution prescribes punishment for such acts and takes precedence over all laws. He also mentioned that the Army Act includes penalties for breaches of the oath. Justice Mandokhail remarked that the judiciary had previously legitimised martial law and questioned whether judges involved in unconstitutional actions also fall under Article 6. Justice Muhammad Ali Mazhar added that judges were initially implicated in the treason trial of former military ruler Pervez Musharraf but were later excluded from the case.