The Military Courts Case VII

Osmany, J. concurs with Saeed, J., with some additional comments.

"In the end it may also be seen that as per settled law, even those persons who are convicted by the military courts can approach the superior courts if they can establish that either the trial was malafide or without jurisdiction or [coram] non-judice. Consequently in my opinion the 21st Amendment to the Constitution of the Pakistan Army (Amendment) Act 2015 does not militate against the essential features of the Constitution and neither does the Pakistan Army (Amendment) Act 2015."

Ejaz Afzal Khan, J., joined by Chaudry, J.

77. Having thus considered what has been addressed at the bar and laid down in the cases cited before us, we hold that:

i) We have jurisdiction to examine the vires of any amendment and annul it if it impairs, undermines or alters any of the parts forming the basic structure of the Constitution; . . .

iv) The Constitution (Twenty First Amendment) Act, 2015 impairing, undermining and altering the parts forming the basic structure of the Constitution is ultra vires and thus non-est; and

v) That once the amendment in the Constitution enabling amendment in the Acts is declared ultra vires and non-est, the latter automatically becomes ultra vires and non-est.

We, therefore, allow the Constitution Petitions in the terms mentioned above.

Dost Muhammad Khan, J.

63. As the Armed Forces are directly engaged in a fight with the Terrorists, any person captured in the course of combat, the investigator into the crime and the Judge presiding the Military Court would certainly belong to the Armed Forces and being party to the conflict therefore, they may be held to be Judges in their own cause. Thus, trial of such civilians by the Military Courts would certainly violate this inviolable universal principle of independent justice. On this account too, such trial would be ab-initio void.

64. There is another serious legal anomaly, fraught with the mischief of serious discrimination because a notified team of functionaries of the Federal Government alone would determine the fate of the civilians accused, referring their cases for trial by the Military Courts. This is a clear encroachment on the power of the Judiciary as, such determination being judicial one, is beyond the scope/authority of the Executive, therefore, fair play and justice would certainly be the casualty. . . .

[I]nvesting the powers in the hands of few individuals with little knowledge of law and principles of justice to decide the fate of a particular civilian, to be tried by the Military Court, would be a clear violation of Article 190 and Article 203 of the Constitution.

66. The legislature also violated the prohibition contained in Article 12, making subsequent amendment in the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, the Pakistan Navy Ordinance, 1961, investing the Military Courts, also to try those accused persons, who were arrested many years back and detained for indefinite period since long.

[Hence, the 21st amendment is ultra vires.]

Bandial, J., joins in Saeed, J.'s opinion, with additional comments. Bandial, J. cites the U.S. Supreme Court's decisions in Quirin and Hamdi, but never mentions Hamdan v. Rumsfeld.