Army Act applies to military personnel, observes Justice Mandokhail

Justice Jamal Khan Mandokhel on Monday remarked that crimes under the Army Act applied only to military personnel.

Justice Mandokhail gave the remark during the hearing of the intra-court appeal against the trial of civilians in military courts in the Supreme Court.

Headed by Justice Aminuddin Khan, a seven-member constitutional bench is hearing the case.

Justice Aminuddin Khan told the counsel for the Ministry of Defense, Khawaja Haris, to conclude arguments by tomorrow. The justice asked him be concise regarding which cases were sent to military courts and why.

Khawaja Haris argued that the Supreme Court had declared Section 59 of the Army Act (4) unconstitutional, to which Justice Mandokhel remarked that many crimes are mentioned in the Army Act, and according to the Act, all crimes will apply to military personnel.

Advocate Haris said that the Army Act would be considered in the context of the provisions 2D(1) and 2D(2) of the Official Secrets Act, and the trial of civilians falls under Section 31D of the Army Act.

Justice Mandokhel observed that Section 31D related to inciting soldiers to refrain from performing their duties. Advocate Haris responded that the Constitution recognises military courts.

Justice Mandokhel replied that Quran forbids one to say prayers, but it sets a condition also; if one is in a state of intoxication. “It remains to be seen whose case will go to military courts.”

Justice Hilali remarked that the Constitution also validates many tribunals, and the key issue is to determine which cases should be heard where and how.

Justice Mandokhel inquired him whether the trial of civilians in military courts will be called a court martial? Advocate Haris replied that trial by military courts is court martial.

Justice Hilali questioned him if an army officer suspends the Constitution, is there a punishment in the Army Act?

Khawaja Haris responded that the Article 6 provides punishment for the crime. Article 6 of the Constitution takes precedence over every law. The [Army] Act also punishes the violation of oath.

Justice Mandokhel remarked that the judiciary had been validating martial law in the past and the question is if Article 6 is applied to those judges.

Justice Mazhar observed that in the Pervez Musharraf case, the names of the judges were initially included, but were later excluded from the treason trial.