Sunday, August 9, 2015

The Military Courts Case VIII

Isa, J. holds that the court has jurisdiction, and proceeds from there . . .

71. The Executive has been separated from the Judiciary and the Constitution prohibits a retrogressive step to be taken in this regard. The Proviso does not negate clause (3) of Article 175, nor does it conjure up the trial of civilians by the military or military-courts under Article 175. Since provisos merely limit or qualify the main enactment, the Proviso cannot be allowed to destroy or nullify clause (3) of Article 175. Clause (2) of Article 175 also does not permit conferment of jurisdiction on the military to conduct the trial of civilians in criminal cases; the same is also not contemplated by Article 245 of the Constitution.

The insertion of the Laws of the Armed Forces and the Protection of Pakistan Act into the First Schedule contravenes clauses (2) and (5) of Article 8. The insertion of such laws into the First Schedule cannot be done through the aegis of clause (3) of Article 8 of the Constitution either. The guarantees provided by Article 4 are in addition to those prescribed in the Fundamental Rights Chapter of the Constitution.

The categorization of terrorists who use the name of religion/sect is not a reasonable classification, and the Federal Government‘s absolute discretion to pick and chose from amongst them further offends it; consequently, the same is discriminatory and offends the equality principle encapsulated in Article 25 of the Constitution.

72. The learned Attorney-General subjected the open court to a number of video recordings; including arbitrary pronouncements of death sentences, followed by beheadings and a game of football with severed heads. Such histrionics and shock tactics demonstrated a reckless disregard for peoples‘ sensibilities, particularly the faint of heart and children who were present. We further saw members of an organization, whose self-proclaimed leader demands allegiance to a self-styled version of himself as Khalifa (Caliph) or Amir-ul-momineen (Leader of the pious); the Government states that it is in possession of evidence that confirms the said group to be an anti-state terrorist organization.

A disturbing fact has come to light; there appears to be no official website that discloses the names of even the 61 proscribed organizations. To verify if a list of the proscribed organizations was available in the public domain the Court associate conducted an internet search of the websites of the concerned authority, agency and ministries, but regretfully none displayed the information. The National Counter Terrorism Authority‘s website was shown to be ― under construction (, the Government of Pakistan, Federal Investigation Agency‘s website was ― under maintenance (, and the websites of the Government of Pakistan‘s Ministry of Interior, Ministry of Defence and Ministry of Law, Justice and Human Rights did not display the same. The general public therefore may have no knowledge whether a particular organization has been proscribed and may provide money to it or even join it in all innocence. Ironically, as demonstrated by the learned Attorney-General, terrorist organizations conduct their propaganda on the internet with aplomb.

The 21st Amendment to the Constitution

5. (a) The 21st Amendment does not succeed in its attempt to try civilians by the military.

(b) The military, which is a part of the Executive, cannot conduct criminal trials because judicial power can only be exercised by the Judiciary.

(c) Clause (3) of Article 175 no longer envisages the exercise of judicial power by the Executive and the Proviso added thereto cannot undo what has already taken place, i.e. the separation of the Judiciary from the Executive.

(d) To bifurcate from amongst those alleged to have committed terrorism and who are to be tried by Anti-Terrorism Courts under the Anti-Terrorism Act, 1997 a separate sub-category of those ―using the name of religion or sect‖ is not sufficiently precise and is also not a reasonable classification. The same, therefore, offends the principle of equality before the law and entitlement to equal protection before law as mandated by clause (1) of Article 25.

(e) The placement of the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 in sub-part III of Part I of the First Schedule to the Constitution cannot be done pursuant to sub-paragraph (ii) of paragraph (b) of clause (3) of Article 8.

(f) Laws relating to the duties and the maintenance of discipline in the Armed Forces, the police or other forces may be excluded from the application of Fundamental Rights as stipulated in paragraph (a) of clause (3) of Article 8, but the said provision cannot be extended to provide for the trial of civilians by the military.

The Pakistan Army (Amendment) Act, 2015

6. (a) The military, which is a part of the Executive, cannot conduct criminal trials of civilians because judicial power can only be exercised by the Judiciary.

(b) The Pakistan Army (Amendment) Act, 2015 takes away and abridges Fundamental Rights mentioned in Chapter 1 of Part II to the Constitution therefore the same is void.

(c) All convictions, sentences passed or acquittals made of civilians tried by the military pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 are set aside and all such cases to be adjudicated afresh by the Anti-Terrorism Courts.

(d) All proceedings of civilians pending before the military pursuant to the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961 and the Protection of Pakistan Act, 2014 to be transferred to the Anti-Terrorism Courts.

7. There are important provisions in the Anti-Terrorism Act, 1997, which if implemented would help to stem terrorism and also ensure the conviction of terrorists.


  1. Thanks Eugene this is Ajeen Kumar from India, email You could make the mammoth 902 page judgment look simpler. I have a query for your opinion.
    3 judges including CJ ruled that there can be no judicial review of constitutional amendment nd rejected the basic structure doctrine. They thus did not advert on vires of 18/19th and 21st amendments and the trial of terrorists by court martial.
    8 Judges held judicial review possible and also upheld 21st amendment and amendment to army act.
    6 judges held judicial review possible and held 21st amendment and amendment to army act ultravires the basic structure.
    This out of 17 judges makes on issue of constitutional validity of 21st amendment and army act amendment 8:6. However the operative part says amendmentsup held 11:6.
    Can we count the three judges who did not enter merits of vires and also did not follow other brother judges along with the judges who upheld vires.
    Don't this make a situation 8:6:3 thus falling below simple majority. Dosent it call for review.

  2. Excellent question, Ajeen. Typically, when fewer than a majority of a multi-member appellate court vote for a particular opinion, the holding in the case is considered the narrowest ground on which a majority does agree. A plurality decision in a case such as this is, in my view, most unfortunate. Given the number of keystrokes the judges have already made in the 902-page collection of opinions released on Wednesday, I doubt they would grant rehearing. This is definitely a fractured court and they have left a bottom line (the petitions are all dismissed) but little else. There have been news accounts that offer what strike me as unwarranted praise or depict the bar as a cheering section. Yet we know some of Pakistan's leading legal minds were in the fray for the petitioners and presumably feel the case was wrongly decided. So I hope the Pakistani press will run some harder-hitting analyses than have been seen thus far. It would be particularly helpful to have a detailed Indian perspective on the Pakistani judges' extensive treatment of the Indian materials. It is rare to see a court in one country examining so very closely the precedents of another.

  3. Thanks yet again. As for an Indian perspective it would indeed be a challenging assignment. However it remain a fact that Pak SC have been relying on persuasive judicial reasoning of their neighbours in determining cases. Judicial intervention over electoral process (review of interim orders of election commission in writ) is one example. We all will agree that justice transcends borders and law develope through such cross border studies. Sad thing to note is at least few judges consider law laid down by courts with a political background as you rightly pointed out. Political equations being a tool of interpreting judgment is unfortunate and do not behove well for an apex court. The silver lining is acceptance of basic structure doctrine which most developed jurisprudence have in common. Will surely study the perspective suggested and revert. Best. Ajeen


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