ISLAMABAD: Supreme Court’s Justice Jamal Mandokhail on Wednesday questioned whether a member of the armed forces committing an offence at home would fall under the jurisdiction of the Army Act.
The remarks came as a seven-member constitutional bench, led by Justice Aminuddin Khan, heard intra-court appeals against military trials of civilians on Wednesday.
Lawyer Salman Akram Raja, representing convict Arzam Junaid, presented his arguments before the court.
During the hearing, Raja argued that the case revolved around two key issues, one of which pertained to Article 175. He stated that fundamental rights could not be curtailed.
Justice Mandokhail inquired whether merging fundamental rights with a specific act could lead to their violation. He further questioned if a soldier marrying a second time without his first wife’s consent would be tried in a military court.
Raja responded by calling the Army Act a “black hole,” arguing that any amendments could compromise fundamental rights. He maintained that for an offence to fall under the Army Act, it must be directly linked to military service.
Providing an example, Raja said that while kite-flying is banned in Punjab, a military officer engaging in the act at home would not be subject to a military trial but rather civilian law.
Justice Naeem Akhtar Afghan, addressing Raja, remarked that during his party’s (Pakistan Tehreek-e-Insaf) tenure, there was active legislation on the Army Act. Raja distanced himself from the legislation, asserting that he had always been in the opposition and was not part of PTI at the time.
During the proceedings, Raja also referenced the 1975 FB Ali case, where Section 2(1)(d) of the Army Act was first debated.
Justice Muhammad Mazhar Ali questioned why Article 2(1)(d) was repeatedly reviewed by the Supreme Court. Raja responded that legal frameworks evolve, necessitating judicial review, adding that Article 8(3) does not provide an exception for Article 2(1)(d).
Justice Afghan noted that an ordinance for Article 2(1)(d) was introduced in 1967 and questioned whether its expiration rendered it obsolete. Raja countered by citing the Official Secrets Act, which has been in place since 1923, allowing trials under its provisions even before 1967.
Justice Mandokhail observed that in civil services, employees found guilty of misconduct are dismissed but not punished, whereas in the armed forces, personnel can face dismissal as well as legal penalties. He further sought clarification on the Army Act’s scope.
Justice Mazhar questioned where a spy should be tried, while Justice Hassan Azhar Rizvi asked where a citizen leaking secrets to enemy states should be prosecuted.
Raja replied that such trials fall under the Official Secrets Act, which outlines legal procedures for prosecution.
He assured the court that he would not present arguments contrary to the Constitution, emphasizing that fundamental rights could not be arbitrarily revoked.
“It cannot be that a commanding officer simply demands a suspect, and they are handed over,” he asserted.
Justice Mazhar pointed out that a five-member bench had already struck down Section 2(d), ruling that espionage suspects could no longer be tried in military courts. However, he clarified that civilian employees within the army still fall under the Army Act’s jurisdiction.
After concluding today’s arguments, the seven-member bench adjourned the hearing till tomorrow (Thursday).
