Army Act contravenes Constitution: CB judge

Supreme Court judge Musarrat Hilali has asked if Article 8(3) of the Constitution applies to civilians also, noting that the said article is included in the Constitution only to discipline members of the armed forces.

"The Constitution includes this provision just to ensure discipline among members of the armed forces. When it is clear that it relates only to the members [of armed forces] then what is left [for imagination]?" the judge noted on Friday.

Justice Hilali was part of a seven-member constitution bench (CB) of the Supreme Court, which is hearing intra-court appeals filed against an earlier SC order that proscribed trial of May 9 rioters by military courts under the Pakistan Army Act, 1952.

Article 8(3) of the Constitution deals with exceptions to the general rule that laws inconsistent with or in derogation of fundamental rights are void.

It specifically exempts laws related to the armed forces, police, and other disciplinary forces from the protections of Articles 8(1) and (2), as long as those laws relate to the discharge of their duties or the maintenance of discipline within their ranks.

Justice Naeem Akhtar Afghan also agreed with Justice Hilali and stated that Article 8(3) applies only to the members of armed forces. "If it applied to the civilians then that would have been mentioned clearly [in the said article]," he said.

According to Justice Afghan, during the eras of martial law a number of things were included in the Constitution. Later, the political government amended the Constitution to revive it in its original form. However, the governments did not touch the Pakistan Army Act, 1952.

During the hearing on Friday, the lawyer for the Ministry of Defense, Khawaja Haris, completed his arguments before the bench led by Justice Aminuddin Khan.

In his reply, Haris stated that earlier there was no provision to file an appeal against the order of a military court. However, people facing military trials were later given the right to appeal when the issue reached the Federal Shariat Court. The court ruled that a right to appeal was prescribed under sharia.

Justice Hasan Azhar Rizvi asked Haris how 105 people were "picked and chosen" for military trial from among thousands of people accused of resorting to violence after the arrest of former prime minister Imran Khan on May 9, 2023.

Khawaja Haris said it was not a matter of picking and choosing and that cases were referred to anti-terrorism courts (ATCs) or military courts based on their nature.

When the lawyer contended that court martial is endorsed by the Constitution, Justice Jamal Khan Mandokhail warned him that the outcome of the case might be even greater than a simple proscription of the military trial of May 9 accused. He said under Article 2 of the Constitution, there are only two types of courts: Subordinate courts and superior courts.

Justice Hilali noted that Section 2 (1) (d) (1) was added to the Pakistan Army Act, 1952 later in 1967. She said the Pakistan Army Act, 1952 contravenes the Constitution, which, according to her, "is very tenacious".

Section 2(1)(d)(1) of the Pakistan Army Act, 1952, defines individuals subject to the act, including those not otherwise subject to it but accused of certain offenses in relation to defense establishments or the armed forces.

Specifically, it includes individuals accused of offenses under the Official Secrets Act, 1923, related to defense, naval, military, or air force matters.

Justice Hasan Azhar Rizvi said 12 to 13 military installations were attacked on May 9, 2023 and that those attacks were a failure of security.

"At that time, action was taken against military officers. Has any institution held any military officer accountable for May 9?" he asked.

The additional attorney general responded that Attorney-General for Pakistan Mansoor Awan will answer that question at the next hearing. The court later adjourned until April 28.