Pakistan's Military Courts Case decided, 5-2, for the government

The Supreme Court of Pakistan today handed down its "Short Order" decision in Shuhada Forum, Balochistan v. Khawaja, ICA No. 5/2023. By a 5-2 vote, the Constitutional Bench allowed the intra-court appeals in the Military Courts Case and set aside the Oct. 23, 2023 contrary 4-1 decision of a regular panel of the Supreme Court. Excerpt:

vi. In our view, the provisions merely accentuating the right to a fair trial and due process in any statute and its actual application and proper implementation during the trial are two distinct features and situations. If an independent right of appeal is provided in the High Court for challenging the original order or internal departmental appellate order of conviction, then obviously, the High Court in exercise of its appellate jurisdiction as conferred under the provisions of the Code of Criminal Procedure, 1898, may examine whether an equal and fair opportunity to defend the charges was afforded to the convict, whether sufficient evidence was available to substantiate the charges, and whether proper procedure in the trial was followed in letter and spirit.

vii. It is expansively evident from the impugned judgment, including the additional note, that during the original proceedings, the learned AGP, time and again, requested for time to seek instructions from the government on whether an independent right of appeal may be provided to the persons not otherwise subject to the Army Act, who are accused of the offences of (i) seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or (ii) having committed in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or  I.C.A. 5/2023 & connected Appeals otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923 as provided under clause (d) of Section 2 (1) of Army Act, and even in the concluding session on 5th May, 2025, the learned AGP reiterated that if this Constitutional Bench refers the matter to the Government/Parliament to amend the law and create a window of an independent right of appeal over and above the provision of appeal already provided under Section 133-B of the Pakistan Army Act, 1952, that will be respected and considered seriously. In support of this contention, he also cited the judgment of this Court rendered in the case of Jurist Foundation versus Federal Government (PLD 2020 SC 1).

viii. While restoring the provisions of Army Act, that were struck down by means of the impugned judgment in the original proceedings before this Court, we, in unison, sensitize the need of legislative changes, which will also be compliant to the requirements laid down under the International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving the constitutional and societal norms in the existing legal framework. Therefore, the matter is referred to the Government/Parliament for considering and making necessary amendments/legislation in the Pakistan Army Act, 1952, and allied Rules within a period of 45 days in order to provide an independent right of appeal in the High Court against the conviction awarded to the persons by the Court Martial/Military Courts under sub-clauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of Section 59 of the Pakistan Army Act, 1952.

ix. Subject to clause (viii) of this Short Order, the limitation period for filing an  appeal by the convicts against their conviction before the High Courts shall be reckoned and applied from the date of notifying the amendments under the Pakistan Army Act, 1952, and their conviction shall be subject to the final outcome/decision in appeal by the High Court.

The Constitutional Bench has thus ruled that if Parliament now provides a right of appeal to the High Court, it was acceptable for the civilian defendants to have been tried by court-martial. 

Justices Jamal Khan Mandokhail and Naeem Akhter Afghan dissented, writing:

For the reasons to be recorded later on, we dismiss these appeals on the following grounds:

(a) The Pakistan Army Act, 1952 (‘PAA’) is a disciplinary statute, relates to members of the Armed Forces, for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline amongst them, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution of the Islamic Republic of Pakistan, 1973 (‘Constitution’), hence, does not offer fundamental rights to persons under the military discipline.

(b) To the contrary, clause (d) added to subsection (1) of section 2 of the PAA relates to persons not otherwise subject to the PAA (‘Civilians’). It does not relate to members of the Armed Forces, nor serves the aforesaid purpose, as provided by sub-clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, it does not qualify for exemption from fundamental rights, hence, cannot be retained as part of the PAA.

(c) Article 175 of the Constitution provides the establishment and jurisdiction of courts. It requires that in order to fully secure the independence of judiciary, it must be separated from executive in all respects. The courts martial comprising of executive, being outside the scope of Article 175(3) of the Constitution cannot prosecute the civilians.

(d) 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.

(e) Denial of right of appeal to civilians against the conviction and sentence by courts martial before an independent and impartial forum is also violative of fundamental right of fair trial and due process.

(f) The trial of civilians by courts martial presided over by active military officers, is violative of the recognized covenants of the United Nations Human Rights Commission ("UNHRC’) as well as the International Covenant on Civil and Political Rights, 1966 (‘ICCPR’) and treaties, to which Pakistan is a signatory.

(g) The trial of civilians by courts martial is in excess of the functions assigned to the Armed Forces by Article 245 of the Constitution.

2. The convictions and sentences awarded to civilians by the courts martial for the occurrence of 9th May, 2023, are declared to be without jurisdiction, hence, the same are set aside. They shall be dealt with as follows:

(i) The accused under custody shall be treated as under-trial prisoners. Their cases stand transferred to the concerned courts of competent jurisdiction for trial. Upon receipt whereof, the concerned courts should proceed with their trials expeditiously and decide the same at the earliest, in accordance with law.

(ii) The persons who have completed/undergone their sentences or have been acquitted of the charge by the courts martial or Forum of Appeal under the PAA, shall have the effect of their discharge under section 169 of the Code of Criminal Procedure (‘Cr.P.C.’).

The majority's decision is preposterous and flies in the face of settled human rights jurisprudence, which strongly disfavors the trial of civilians by military courts. It also cannot be reconciled with the fact that the last time Pakistan used its military courts to try civilians, it was deemed necessary to amend the Constitution to authorize it -- a temporary amendment that ultimately expired.

This decision is likely to embolden those in Uganda who have resisted compliance with that country's Supreme Court's decision in the landmark Kabaziguruka decision.