Islamabad:
The Supreme Court has judged that the trial of civilians under the Army Act does not violate the standards of fair trial, because the constitutional bench rendered its detailed judgment on Monday – more than four months after having put aside a previous decision of the Supreme Court which had declared such unconstitutional trials.
By a majority of 5-2, the bench reaffirmed its short order of May 7. Two judges – Justice Jamal Khan Mandokhail and Judge Naeem Akhtar Afghan – dedicated, judging that the military trials of civilians were unconstitutional.
“The conduct of trials under the Army Act, when exercised within the legal limits and supported by procedural guarantees, does not violate the standards of fair trial. The contested judgment made an error by holding the opposite,” wrote Amicin Khan in the 68 -page verdict.
The judgment examined whether the trials of civilians under the army law met the requirements of equity, impartiality and regular procedure guaranteed under article 10a of the Constitution, and if the military courts constituted a constitutionally adequate forum to warn such cases.
The judgment said that the Army Act, as a legislative framework, provided for an internal procedural structure which included detailed rules of proof, the rights of the accused to be informed of the accusations, the right of advice, the counter-examination of the witnesses and a examination on appeal via article 133-b.
“These guarantees are integrated into the military justice system, as confirmed by this court to Shahida Zahir Abbasi in 1996,” he said, noting that in international law, including article 14 of the International Alliance on Civil and Political Rights (ICCPR), the military courts were not in itself unconstitutional.
“What is necessary is that these courts offer basic equity guarantees, including an independent appeal process. Army law, through its internal examination structure, satisfies these minimum standards,” said the court.
“The fair trial does not impose that each forum must be of identical structure to the regular courts. What it requires is that the forum is fair, impartial and governed by transparent rules. The law of the army, as it is currently framed and applied in the current context, responds to this constitutional requirement.”
Regarding the question of whether the arbitration of military courts in relation to civilians concerned the constitutional principle of separation of powers as established in article 175, constitutional guarantees of equity.
The court also judged that an appropriate understanding of article 175, paragraph 3, demanded to recognize the functional role of military justice. “The military courts deal with offenses that have a direct relationship with national defense and military operations,” he said.
“They do not exist to replace the civil courts, but to operate in a closely defined legal space to serve objectives that civil judicial forums are not equipped to attack. Their jurisdiction must therefore be understood in the context of operational requirements, rather than in the abstraction on their part.”
The judgment said that military justice in Pakistan had developed as a structured legal system with defined competence, procedural guarantees and limited scope. “It is not a discretionary or ad hoc mechanism but a codified and historically anchored system. When its jurisdiction on civilians is exercised with loyalty to the statutory objective and military necessity, it does not violate article 175 (3).”
Although article 10a of the Constitution does not apply directly to the Pakistani army law due to the exclusion provided by article 8, paragraph 3, a), the judgment noted, the minimum standards of equity and procedural justice have nevertheless been anchored in the law of the Constitution, which confirmed that “each individual is dealt with in accordance with the law”.
These standards also find a strengthening of the international obligations of Pakistan under article 14 of the PICPR, which required that those accused of criminal offenses must have the right to a fair hearing by a competent, independent and impartial court established by law.
The judgment judged that the appropriate constitutional response was not to cancel the existing provisions, but to recognize that, although the law of the army provided the basic procedure in shape, it did not have the structural guarantees necessary for a fair appeal forum in the case of civilians.
“Consequently, the legislative framework must be supplemented to provide an independent right of appeal before the high lessons for civilians sentenced under said provisions,” tried the court.
The court also judged that if the procedural framework under the Army Act includes formal protections of regular procedure, the absence of an independent right of appeal before a civil court rendered its request to the constitutionally incomplete civilians.
“The provisions are not intrinsically unconstitutional, but this deficiency requires legislative intervention. This court therefore refers to the case in the Parliament for the promulgation of appropriate modifications, pending such institutional deference will be granted to respect due,” he said.
“The Government and Parliament Are Urged to Undertake The Necessary Amendments or Enact Travel Legislation in the Pakistan Army Act, 1952, and Allied Rules Within A Period of 45 Days to Provide An Independent Right of Appeal in the High Courts Against Convictions Rendered by Court Martial or Military Courts Offenses Under Sub-Clauses (I) and (II) of Clause (D) of Subsection (1) of Section 2, Read with Subsection (4) of article 59 of Pakistan Army Act, 1952. “
The court also judged that the judicial function should interpret and not legislate. The Court reiterated the principle that constitutional arbitration must be confined in the contours of the text.
The constitutional bench judged that the previous bench of the Supreme Court had made an error by ignoring the doctrines of constitutional avoidance and interpretative restraint, adding that the reduction in the entire provisions lacked proportionality and doctrinal support.
“The contested judgment is therefore likely to be canceled to go beyond the minimum corrective required under the Constitution,” said the judgment. He noted that although petitions involved questions of public importance and the violation of fundamental rights, the original bench did not meet the twin requirements to invoke the original extraordinary jurisdiction of this Court: the existence of a question of public importance and the alleged violation of a fundamental right.
“This jurisdiction should not be invoked with casualness; it is rather a tool of last resort for questions of deep constitutional means, said the detailed judgment.” The contested judgment is fatally defective for his inability to explicitly and convincing this preliminary jurisdictional objectional objection. “”
Continuing, the judgment said that the decision of the SC bench to proceed without a clear and motivated conclusion on maintainability was not a simple analytical omission but a serious breach of the judicial obligation.
“Article 184, paragraph 3, is a powerful constitutional provision, and its request cannot be presumed or taken for acquired. This court concludes that the silent hypothesis of the contested judgment was a dangerous precedent which must be corrected.”
