Islamabad:
The Supreme Court has stated that the lawsuit against civilians under the Army Act does not conflict with Fair trial standards, as the constitutional bench on Monday handed down its detailed judgment – more than four months after the sale of a previous point court that had declared such trial constitutional.
At a 5-2 majority, the bench confirmed its short order from 7 May. Two judges righteousness Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan-made, claiming that the military attempts with civilians were constitutional.
“The construction of litigation under the Army Act, where they are exercised within statutory limits and supported by procedural protection measures do not contravene fair trial standards. The forced judgment was mistaken by holding anything else,” Justice Aminuddin Khan wrote in the 68 -page judgment.
The judgment investigated whether civil litigation under the Army Act met the requirements of justice, impartiality and proper process guaranteed under Article 10a of the Constitution and whether military courts constituted a constitutionally sufficient forum to judge such cases.
The judgment said that the Army Act, as a legislative framework, provided an internal procedural structure that included detailed rules of evidence, the accused rights to be informed of charges, the right to advice, cross-examination of witnesses and appeal review through section 133-B.
“These protection measures are embedded in the military legal system, as this court was confirmed in Shahida Zahir Abbasi in 1996,” it said, noting that in international law, including Article 14 of the International Charter on Civil and Political Rights (ICCPR), military courts were not in themselves.
“What is required is that such courts provide basic guarantees of justice, including an independent appeal process. Army Act, through its internal review structure, satisfies these minimum standards,” the court said.
“Fair trial does not require any forum to be identical in structure to regular courts. What it requires is that the forum is fair, impartial and governed by transparent rules. Army action currently framed and used in the current context meets this constitutional requirement.”
On the question of whether the military courts’ assessment in relation to civilian violated the constitutional principle of power separation laid down in Article 175 (2) of the Constitution.
The court also found that a proper understanding of Article 175 (2). 3, required to recognize the functional role of military justice. “Military courts relate to offenses that carry a direct relationship with national defense and military operations,” it said.
“They do not exist to replace civilian courts, but to operate within a narrowly defined legal space to serve purposes that civilian legal forums are not equipped to tackle. Their jurisdiction must therefore be understood in connection with operational exits rather than in abstraction from them.”
The verdict said that military justice in Pakistan had evolved as a structured legal system of defined jurisdiction, procedural protection measures and limited scope. “It is not a discretionary or ad hoc mechanism, but a codified and historically rooted system. Where its jurisdiction over civilians is exercised with credibility for statutory purpose and military necessity, it is not contrary to Article 175 (3).”
Although Article 10a of the Constitution does not apply directly to the Pakistan Army Act due to the exclusion provided in Article 8 (2). 3 (a), noted the judgment, was the minimum standards of justice and procedural justice nonetheless embedded in Article 4 of the Constitution, which confirmed that “each individual must be treated in accordance with the law”.
These standards also find reinforcement in Pakistan’s international obligations under Article 14 of the ICCPR, which mandated that persons charged with criminal acts must be entitled to a fair consultation with a competent, independent and independent court laid down by law.
The judgment found that appropriate constitutional reaction was not to defeat the existing provisions directly, but to recognize that although the Army Act provided basic procedural process in form, it lacked the structural guarantees needed for a fair appeal forum in the event of civilians.
“Therefore, the legislative framework must be supplemented to provide an independent appeals law to the high courts of civilians convicted in accordance with the aforementioned provisions,” the court issued.
The court also found that although the procedural framework under the Army Act includes formal protection of the proper process, the absence of an independent appeal to a civil court drafted its use to civilian constitutionally incomplete.
“The provisions are not by nature constitutional, but this deficiency requires regulatory intervention. This court therefore refers to Parliament for the adoption of appropriate changes, with the expectation that such institutional respect will be awarded respect,” it said.
“The Government and Parliament are urged to undertake the necessary changes or adopt appropriate legislation in the Pakistan Army Act, 1952, and the Allied rules within a period of 45 days to provide an independent appeal in the high court court courts issued by court or military courts in relation to understood section 59 of Pakistan Army ACT, 1952.”
The court also found that the legal function was to interpret, not to legislate. The court repeated the principle that constitutional judgment must be limited within the contours of the text.
The constitutional bench found that the Supreme Court’s previous bench made a mistake of disregarding the doctrines of constitutional avoidance and interpreting restraint, adding that striking the provisions of its entirety lack of proportionality and doctrinal support.
“The intended judgment can therefore be set aside to exceed the minimal corrective corrective, required by the Constitution,” the verdict said. It noted that although the petitions involved issues of public importance and violation of fundamental rights, the original bench failed to fulfill the twin requirements to invoke the extraordinary indigenous jurisdiction of this court: the existence of a question of public importance and the alleged violation of a fundamental right.
“This jurisdiction must not be invoked randomly; rather, it is a tool for the last resort for questions of deep constitutional significance, said the detailed judgment.” The forced judgment is deadly deficient in its lack of explicit and compelling regarding this preliminary jurisdictional objection. “
Continued, the verdict said that the SC bench’s decision to continue without a clear, justified finding of maintenance was not a pure analytical omission, but a serious remission of legal duty.
“Article 184 (2).
