Supreme Court Questions Accountability for Suspending Constitution During Military Court Hearings**
ISLAMABAD: Justice Musarrat Hilali, a member of the Supreme Court’s constitutional bench, raised a critical question on Monday regarding the punishment faced by an army officer for suspending the Constitution.
The query arose during a hearing of appeals against the trial of civilians in military courts, presided over by Justice Amin-Ud-Din Khan. The constitutional bench is tasked with addressing the legal and constitutional issues surrounding these trials.
Khawaja Haris, representing the Ministry of Defence, argued that the Supreme Court had declared Section 59(4) of the Army Act null and void. Justice Jamal Khan Mandokhail noted that the Army Act lists various crimes applicable to military officers. Haris countered, stating that Section 31-D of the Act governs the trial of civilians, which has constitutional backing for military court proceedings.
Justice Mandokhail clarified that Section 31-D pertains to acts encouraging soldiers to neglect their duties and questioned the scope of military court jurisdiction over civilians. Justice Hilali added that the Constitution recognizes multiple tribunals, emphasizing the need to determine the appropriate forum for specific cases.
Further probing the Army Act, Justice Hilali asked whether it specifies penalties for army officers who suspend the Constitution. Haris responded by pointing to Article 6 of the Constitution, which prescribes punishment for constitutional violations, adding that the Army Act also addresses breaches of the military oath.
Justice Mandokhail questioned whether judges who validate unconstitutional actions under martial law could also be held accountable under Article 6. Justice Muhammad Ali Mazhar referenced the treason case against former President Pervez Musharraf, where judges initially included in the trial were later excluded.
The bench also discussed standards of evidence in military trials. Justice Azhar asked whether the rules of evidence were followed, whether witnesses were cross-examined, and whether defence witnesses were allowed. Haris argued that without jurisdiction, the Supreme Court could not review the evidence but acknowledged that such a review might be possible.
The discussion extended to the application of the Official Secrets Act. Justice Azhar noted that while the Act was amended on August 11, 2023, the incidents in question occurred in May 2023. He questioned the retrospective application of the amendment, which Haris confirmed was applied retroactively.
Justice Amin-Ud-Din directed Haris to conclude his arguments by outlining the cases transferred to military courts and the rationale for their transfer. The hearing was adjourned until Tuesday for further proceedings.
