The judgment from May 2025 explicitly ordered the government and parliament to remedy this deficiency
ISLAMABAD:
A year after a ruling, the Supreme Court has yet to see implementation of its own directive requiring the federal government to legislate an independent right of appeal for civilians convicted by military courts, leaving an important due process safeguard in limbo.
In its majority judgment authored by Justice Aminuddin Khan on 7 May 2025, the Supreme Court upheld the military trials of more than 100 PTI activists involved in the 9 May 2023 attacks on military installations.
However, the same judgment recognized a critical legal gap, holding that while the Pakistan Army Act provides procedural due process in form, it lacks the structural guarantees necessary for a fair appellate forum for civilians.
The judgment expressly ordered the government and the Danish Parliament to remedy this deficiency. It stated that the legislative framework must be supplemented to give civilians convicted under military law an independent right of appeal to the High Courts.
“We collectively sensitize the need for legislative changes that will also be consistent with the requirements of the International Covenant on Civil and Political Rights (ICCPR) to uphold and preserve the constitutional and societal norms of the existing legal framework.”
The May 7 order, signed by Justice Aminuddin Khan, Justice Muhammad Ali Mazahar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Shahid Bilal Hassan, states that the matter has been referred to the government and parliament to consider and make necessary changes or legislation in the Pakistan Army regulations within a period of 1952 days, and its total 452 days.
The amendments are intended to provide an independent right of appeal to the High Court against sentences awarded by courts-martial or military courts to persons under sub-clause (i) and (ii) of clause (d) of sub-section (1) of section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of the same Act.
Two judges – Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan – dissented, holding that military trials against civilians were unconstitutional.
Despite the time-bound directive, the federal government neither challenged the portion of the judgment imposing appellate rights nor introduced the required legislation. Initially, officials had indicated that a bill would be moved, but no progress followed. Subsequently, former Chief Justice Jawad S Khawaja filed a contempt petition against Prime Minister Shehbaz Sharif for non-implementation of the court’s order.
Parallel legal challenges also emerged, with some petitioners filing review petitions challenging the judgment’s approval of military trials. Following the 27th Amendment, the case was transferred to the Federal Constitutional Court (FCC), presided over by Justice Aminuddin Khan – the author of the original majority decision.
Since the transfer, however, the matter has not been taken up by the FCC. Meanwhile, those convicted by military courts continue to be denied an independent right to appeal.
Legal experts have expressed strong concern over the continued inaction.
Lawyer Faisal Siddiqi said that the limited exemption from a right of appeal granted by the “26th Amendment Judiciary” had effectively been nullified by subsequent developments. To paraphrase the great German philosopher Nietzsche, “the judiciary is dead, long live the new judiciary.”
Islamabad-based lawyer Waqas Ahmed noted that the SC had allowed military trials against civilians on the condition that an independent right of appeal would be granted, a condition that remains unfulfilled. He termed this as a serious concern for justice and due process, adding that the FCC, which now has jurisdiction, must ensure the enforcement of the judgment.
Barrister Asad Rahim Khan argued that even the limited appeal protection was inadequate from the outset.
“Whatever the sops went, this one was also retained. After all, the main consequence of the decision was not to provide an additional appeals court. It was to validate military tribunals for civilians outside a declared state of emergency and outside a constitutional amendment – the first time in our history,” he noted.
He further stated that the implementation of even these limited safeguards had been further complicated by the creation of the FCC, which he described as an aberration within a common law system that has weakened binding precedent.
Barrister Sameer Khosa said the judgment of the Supreme Constitutional Court required the federal government to give an appeal to the convicts, but the government has not even pretended to offer one.
Barrister Rida Hosain, who assisted one of the petitioners in challenging military trials, says the Supreme Court accepted that there was no independent right of appeal under the Army Act. Under the Military Law, the right of appeal lies to an Appellate Tribunal consisting of the Chief of the Army Staff or one or more officers appointed by him. The Appellate Forum is composed of serving military officers who remain subject to the same command structure. An appeal, within the military structure, is an appeal to a hierarchy that has an institutional interest in defending its own processes.
“Despite a time-bound directive, the government has failed to take steps to initiate legislation. Those convicted by military courts are left without access to an independent appellate forum. The consequences of inaction are stark. Civilians have been deprived of their liberty by military courts without any independent appeal. Lack of legislation destroys the constitutional protection process and wrongful protection of citizens, and it pits citizens’ law of injustice against liberty. mercy. with a system structurally incapable of independent appeal, that the government’s inaction reflects its sheer disregard for court orders,” she adds.
Barrister Rida Hosain further states that Jawwad S. Khawaja has filed a contempt petition against Prime Minister Shehbaz Sharif for non-compliance with a time-bound court order. The motion for contempt has not been set for hearing. Neither the government nor the judiciary seem to be interested in the court’s orders being implemented. A court’s duty does not end with making a decision. It must ensure implementation”.
