The Military Courts Case IV

Saeed, J., wrote for himself and seven other justices:

54. . . . [I]t is clear and obvious in our Jurisprudence as it has evolved through the pronouncements of the Courts, it has been firmly established and acknowledged that the Constitution is not a bunch of random provisions cobbled together but there is an inherent integrity and scheme to the Constitution evidenced by certain fundamental provisions, which are its Salient and Defining Features.

171.  . . . [T]here can be no manner of doubt that it is a settled law that any order passed or sentence awarded by a Court Martial or other Forums under the Pakistan Army Act, 1952, included as amended by the Pakistan Army (Amendment) Act, 2015, is subject to the Judicial Review both by the High Courts and this Court, inter alia, on the ground of coram-non-judice, without jurisdiction or suffering from mala fides including malice in law. This would also hold true for any decision selecting or transferring a case for trial before a Court Martial. Furthermore, such decision requires the exercise of discretion by the Executive Authority, which must necessarily be exercised reasonably, fairly, justly and for the advancement of the purpose of the enactment, as provided by Section 24A of the General Clauses Act, 1897, which is reproduced hereunder for ease of reference:

―24A. Exercise of power under enactments.—(1) Where by or under any enactment a power to make any order or give any direction is conferred on any authority, office or person such power shall be exercised reasonably, fairly, justly and for the advertisement of the purposes of the enactment.

(2) The authority, office or person making any order or issuing any direction under the powers conferred by or under any enactment shall, so far as necessary or appropriate, give reasons for making the order or, as the case may be for issuing the direction and shall provide a copy of the order or as the case may be, the direction to the person affected prejudicially.”

177. However, the trials of civilians by Court Martial are an exception and can never be the rule. Amplification of the jurisdiction of the Forums under the Pakistan Army Act, in this behalf, may step out of the bounds of Constitutionality.

178. The response of the State appears to be proportionate and targeted focusing on terrorists known or claiming to be members of a group waging war against Pakistan in the name of religion or sect, rather than looking towards Article 232, which would have adversely impacted the Fundamental Rights to a large expanse of the population and seriously curtailed the jurisdiction of the Courts.

179. During the course of arguments, some reference was made to the Public International Law and International commitments made by the Pakistan. It is for the Federal Government to ensure that the course of action undertaken by them does not offend against the Public International Law or any International Commitment made by the State, which may have adverse repercussions for Pakistan.

180. In view of the aforesaid, it is held that:

(a) The Constitution contains a scheme reflecting its Salient Features which define the Constitution. Such Salient Features are obvious and self evident upon a harmonious and []holistic interpretation of the Constitution. In an effort to discover such Salient Features material outside the Constitution cannot be safely relied upon.

(b) The Salient Features as are ascertainable from the Constitution including Democracy, Parliamentary Form of Government and Independence of the Judiciary.

(c) The amendatory powers of the Parliament are subject to implied limitations. The Parliament, in view of Articles 238 and 239 is vested with the power to amend the Constitution as long as the Salient Features of the Constitution are not repealed, abrogated or substantively altered.

(d) This Court is vested with the jurisdiction to interpret the Constitution in order to ascertain and identify its defining Salient Features. It is equally vested with jurisdiction to examine the vires of any Constitutional Amendment so as to determine whether any of the Salient Features of the Constitution has been repealed, abrogated or substantively altered as a consequence thereof. . . 

(f) The 21st Constitutional Amendment and the Pakistan Army (Amendment) Act, 2015 accumulatively provide, a temporary measure for the trial of terrorists accused of offences including waging war against Pakistan by a forum already constituted under the law and consistent with a recognized procedure already available for and applicable to personnel of the Pakistan Army. The enlargement of the jurisdiction of such forum is subject to due compliance with an ascertainable criteria constituting a valid classification having nexus with the defence of Pakistan and does not abrogate, repeal, or substantively alter the Salient Features of the Constitution.

The provisions of the 21st Constitutional Amendment as such are intra vires the Constitution.

The provisions of the Pakistan Army (Amendment) Act, 2015, are not ultra vires the Constitution.

(g) The decision to select, refer or transfer the case of any accused person for trial under the Pakistan Army Act, 1952, as Amended is subject to Judicial Review both by the High Courts and by this Court inter alia on the grounds of coram-non-judice, being without jurisdiction or suffering from mala fides including malice in law.

(h) Any order passed, decision taken or sentence awarded under the Pakistan Army Act, 1952, as amended by the Pakistan Army (Amendment) Act, 2015, are also subject to Judicial Review by the High Courts and this Court, inter alia, on the grounds of being coram-non-judice, without jurisdiction or suffering from mala fides including malice in law.

181. In view of the above, all the instant Constitution Petitions are liable to be dismissed in the above terms.