CB queries explore scope of Army Act

The Constitutional Bench of the Supreme Court on Wednesday sought clarification from authorities as to why the Army Act was not applied to the cases related to the 2014 Army Public School (APS) attack.

The constitutional bench, led by Justice Aminuddin Khan, heard an intra-court appeal challenging the apex court decision against the military court trial of the civilians. Defence Ministry lawyer Khawaja Haris continued his arguments.

During the hearing, Justice Jamal Khan Mandokhail questioned the necessity of amending the Constitution to permit military trials over terrorism, asking why such trials were not conducted in the past, despite the existence of the Army Act.

Haris argued that the nature of the crime determined whether the trial was held in a civilian or military court. He pointed out 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 perpetrator's intent should be considered to determine if the crime was against national interests. Haris clarified that military courts could try terrorist acts linked to religious or terrorist groups under the Army Act, with or without constitutional amendments.

Justice Mandokhail enquired about the handling of significant cases like the 2014 APS attack under the existing legal framework. Haris stated that the APS attack was linked to the military, but was not directly tried under the military courts.

He noted that the constitutional amendment covered additional crimes beyond military duties. Justice Mandokhel enquired if a terrorist kidnapped an army man, where the trial will take place.

The defence ministry's lawyer replied that supposedly, if the trail could not take place in the military court, but the question would arise how the hypothesis would link it to the case in question.

Justice Muhammad Ali Mazhar remarked that the court was not focusing on the nature of the crime but it only had to see whether the relevant sections of the Army Act were in line with the Constitution.

Justice Aminuddin Khan said that the Supreme Court had to review the constitutional status of the law and the decision. Justice Mazhar said the court would have to see the comparative analysis as what modus operandi was adopted for the military trial.

Haris maintained that if the Supreme Court upheld Sections 2(D)(1) and 2(D)(2) of the Army Act, challenges to the military courts should be dismissed. The bench also referred the 21st Constitutional Amendment, which allowed military trials for terrorism cases after the APS attack.

Justice Naeem Akhtar Afghan remarked that the amendment had been a subject of parliamentary debate and applied judicial reasoning, while Justice Hassan Azhar Rizvi noted the emotional context in which the amendment had been approved.

Khawaja Haris defended the role of parliament in passing the amendment, acknowledging the crucial role played by former Senate chairman in its approval. The constitutional bench then adjourned the hearing till Thursday (today).