The Supreme Court of Pakistan on Wednesday, in a majority 5-2 verdict, reinstated the Pakistan Army Act to its original form after accepting appeals against an Oct. 23, 2023 verdict and declaring it null and void.
In its ruling, the court approved the appeals filed by the Ministry of Defense and other parties and restored Sections 2(1)(d)(i), 2(1)(d)(ii), and 59(4) of the Army Act, which had previously been nullified.
The majority judges—Justices Aminuddin Khan, Muhammad Ali Mazhar, Musarrat Hilali, Hasan Azhar Rizvi, Shahid Bilal Hassan—observed that the previously nullified provisions could not be declared ultra vires of Article 8(5), as it states that fundamental rights cannot be suspended unless expressly provided by the Constitution.
Summarizing the proceedings, the ruling noted that 39 military installations were targeted during the May 9, 2023 riots. In addition to the lodging of cases against the accused, they said, the attorney general of Pakistan had confirmed “stern disciplinary action” was taken against several Army officials over dereliction of duty. “All fundamental rights enshrined and envisaged under the Constitution are subject to reasonable restrictions imposed by the law. Peaceful assembly, association, or public demonstration/protest within the bounds and precincts of reasonable restrictions imposed by the law is not prohibited but without violating or breaking the law, or taking the law in one’s hands,” it added.
It observed that the respondents’ counsel had argued in favor of trying the accused in Anti-Terrorism Courts rather than military courts, as such courts cannot exercise judicial functions in the cases of civilians under the Constitution. By contrast, it stated, the appellants’ counsel had argued that setting aside portions of the Army Act had hampered the ability to act against even hardcore criminals and terrorists involved in attacks on army installations, or persons accused of espionage.
Observing that any lawbreakers are liable to be punished on proving their guilt, subject to right of appeal, the court said the AGP had asserted that the right to a fair trial, as enshrined under Article 10A of the Constitution, and due process of law, was available to accused in the May 9 riots.
It ruled that legislative changes were required to ensure the right to appeal against military court verdicts and referred the matter to the government. The court has directed the government to legislate within 45 days to ensure the right of appeal and has also ordered amendments to the Army Act to allow appeals in high courts against decisions of military courts. It has said such legislations must be compliant to the requirements laid under the International Covenant on Civil and Political Rights.
Dissenting Note
In their dissenting note, Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan said the Pakistan Army Act related to members of the armed forces. Section 2(1)(d) allows civilians to be tried, which they observed did not serve the legislation’s purpose and did not qualify for exemption from fundamental rights and hence cannot be retained in the Act.
The dissenting note further observed that an independent judiciary must be separated from the executive in all respects and as court martials comprise of executive, they cannot prosecute civilians. “The trial of civilians by courts martial offends the fundamental principle of independence of judiciary, fundamental rights of security of person, safeguard as to arrest and detention, fair trial and due process, right to information, equality of citizens and Injunctions of Islam, as guaranteed by Articles 2A, 9, 10, 10A, 19A, 25 and 227(1) of the Constitution, respectively,” they wrote.
Denial of right to appeal, it said, was also in violation of fundamental right of fair trial and due process.
Military trials case
Last year, the Supreme Court’s constitutional bench granted conditional permission to military courts to announce verdicts in cases involving 85 suspects of the May 9, 2023 riots. The order said the judgments of military courts would be conditional to the top court verdict on the cases pending before it.
In October 2023, a five-judge bench of the apex court had issued a unanimous verdict declaring civilians’ trials in military courts null and void after admitting petitions challenging the trial of civilians involved in the May 9 riots.