Army Act contravenes Constitution: CB judge
Justice Musarrat Hilali says Article 8(3) applies only to members of armed forces
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.
