ISLAMABAD – Justice Jamal Mandokhail of the Supreme Court said that, in his opinion, the Constitution of Pakistan is supreme, not Parliament, which is also subject to the Constitution while hearing a case related to civilians’ trial in the military courts.
A SC seven-member constitutional bench, led by Justice Aminuddin Khan, heard the case concerning the trial of the civilians in the military courts.
During the proceedings, the Ministry of Defence’s counsel, Khawaja Haris, presented his arguments.
Justice Jamal Khan Mandokhail remarked that the Army Act is primarily designed to maintain discipline within the military. In response, Khawaja Haris argued that it is Parliament’s role to determine how and to whom the law applies.
Justice Mandokhail reiterated that, in his view, the Constitution holds supremacy over Parliament.
To this, Khawaja Haris responded that instead of focusing on a single clause, the Constitution should be considered in its entirety as determining the scope of a law’s application is parliament’s responsibility, not the judiciary’s.
Justice Mandokhail questioned whether the parliament could introduce additional clauses in the army act for the civilians in the future.
Khawaja Haris replied that this was not the question before the court.
Justice Mandokhail agreed with the counsel on the interpretation of Article 8(5). At this point, Justice Musarrat Hilali interjected, stating, “We are not agreeing with you; you are agreeing with us.”
Justice Hilali further remarked that despite the case being in progress since last year, she had yet to receive an answer to her question: “Do military courts fall under Article 175? Are they equivalent in status to regular courts?” Khawaja Haris responded that he would address this question after the first clarifying his argument on Article 8.
Justice Aminuddin Khan stated that declaring Section 2(1)(d) of the Army Act null and void would not be appropriate, and the court agreed with Khawaja Haris on this argument.
