Justice Jamal Khan Mandokhail has said that several offenses are listed under the Army Act, but all apply only to military officers.
He made the remarks during the Supreme Court hearing on internal appeals challenging the trial of civilians in military courts,
A seven-member constitution bench headed by Justice Aminuddin Khan heard the case on Monday, Express News reported.
The session began with Khawaja Haris, representing the Ministry of Defence, presenting arguments.
Justice Aminuddin urged Khawaja Haris to finish his arguments by Tuesday and requested 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 dealt with later.
Khawaja Haris argued that the Supreme Court had earlier invalidated Section 59(4) of the Army Act.
Justice Mandokhail observed that Section 31D, used for civil proceedings, relates to incitement to obstruct military duties.
Justice Musarrat Hilali pointed out that the constitution recognizes various tribunals and emphasizes the need to examine the jurisdiction, location and procedure for hearing cases.
“The issue here is procedural — who is going to lead the trial,” she said.
Judge Mandokhail questioned whether civilian trials in military courts could be classified as martial law.
Khawaja Haris confirmed that they could.
Justice Hilali raised the absence of a specific punishment in the Army Act for suspending the constitution and asked, “What punishment does the law prescribe for an army officer who suspends the constitution?”
Khawaja Haris countered by saying that Article 6 of the Constitution prescribes punishment for such acts and takes precedence over all laws. He also mentioned that the army law contains penalties for breaking the oath.
Justice Mandokhail noted that the judiciary had previously legitimized martial law and questioned whether judges involved in unconstitutional acts also fall under Article 6.
Judge Muhammad Ali Mazhar added that judges were initially implicated in the treason case against former military ruler Pervez Musharraf but were later excluded from the case.
