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Official Citation: 2023 SCMR 1732
Court / Jurisdiction: Supreme Court of Pakistan
Year of Decision: 2023
Decision Date: 2023-12-31
Ruling Summary: This decision was rendered by the Supreme Court of Pakistan on 2023-12-31, officially reported as 2023 SCMR 1732. In this matter between the Petitioner and the Respondent, the court adjudicated key questions of statutory construction, procedural regularity, and legal precedent under Pakistani law.
Core Holding: The honorable bench evaluated governing statutory provisions and judicial authorities to establish the rights of the parties, delivering the binding reasoning set out below.
Case cited as 2023 SCMR 1732
Court Name: Supreme Court of Pakistan Judge(s):Ijaz-ul-Ahsan, Ayesha A. Malik, Munib Akhtar, Yahya Afridi, Sayyed
JUDGMENT
Reported As: 2024 SCP 9, PLD 2024 Supreme Court 337, 2023 SCP 190, 2023 SCMR 1732 Result: Order Accordingly Judgment
JUDGMENT Munib Akhtar, J.: Lord Atkin, in one of his most well-known speeches (a famous dissent instantly recognizable), said that in England, even amid the clash of arms, the laws were not silent, that they spoke the same language in peace and in war. Delivered in 1941, the opinion has resounded through the decades and is set to echo down the ages. It was the direst of times, the darkest of hours. Great Britain and her Allies were engaged upon a titanic, globe-spanning struggle against the Axis Powers. Though (the utterances of some to the contrary notwithstanding) things in this country at the present time are, by the Grace of the Almighty, not at all comparable to the perilous times in which Lord Atkin protested ("even though I do it alone"), in their own way the issues raised are nonetheless stark and compelling. For the question put to the Court is this: in respect of fundamental rights, in relation to the trial of civilians by courts martial whatever the circumstances may be, what is the language of the Constitution? What language should--nay, must--the Constitution speak? Very respectfully, the petitioners ask: what says the Court? On 23.10.2023, the following answer was given ("short order"): 2. "For detailed reasons to be recorded later, and subject to such amplification and/or explanation therein as is considered appropriate, these petitions are decided in the following terms: i. It is hereby declared by Mr. Justice Ijaz ul Ahsan, Mr. Justice Munib Akhtar, Mr. Justice Sayyed Mazahar Ali Akbar Naqvi and Mrs. Justice Ayesha A. Malik that clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952 (in both of its sub clauses (i) & (ii)) and subsection (4) of Section 59 of the said Act are ultra vires the Constitution and of no legal effect.
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ii. Without prejudice to the generality of the foregoing the trials of civilians and accused persons, being around 103 persons who were identified in the list provided to the Court by the learned Attorney General for Pakistan by way of CMA No.5327 of 2023 in Constitution Petition No.24 of 2023 and all other persons who are now or may at any time be similarly placed in relation to the events arising from and out of 9th and 10th May, 2023 shall be tried by Criminal Courts of competent jurisdiction established under the ordinary and / or special law of the land in relation to such offences of which they may stand accused. iii. It is further declared that any action or proceedings under the Army Act in respect of the aforesaid persons or any other persons so similarly placed (including but not limited to trial by Court Martial) are and would be of no legal effect. iv. Mr. Justice Yahya Afridi reserves judgment as to para (i) above, but joins the other members of the Bench as regards paras (ii) and (iii)." Set out below are our reasons for this answer. 3. For present purposes the Constitution may be regarded as existing and operating in either one of two primary "modes" or states. The first is its operation in the ordinary course, which may be regarded as the "default" mode. (This may be likened, echoing Lord Atkin, to its "peacetime" operation). The other is when it operates in a time when there is in force a Proclamation in terms of Part X, the Emergency Provisions. Of particular relevance here is the Proclamation of Emergency that can be issued in terms of Article 232, when there is a threat to the security of the country, in whole or in part, by war or external aggression or internal disturbance beyond the power of a Provincial Government to control. (A Proclamation under Article 232 may be likened, again echoing Lord Atkin but subject to strong caveats and heavy qualifications, to its "wartime" operation.) It may be stated at the outset that in the present context it is, strictly speaking, constitutionally not relevant whether the country is in a state of peace or war. What matters is whether the Constitution is operating in the normal course, or a Proclamation under Part X (and in particular, of Emergency) is in the field. There is also a third, though secondary, state or "mode" in which the Constitution may operate. That is when the Federal Government, in lawful exercise of its powers under Article 245, has called upon the Armed Forces to act in aid of civil power, or the Armed Forces are, under the directions of said Government, defending Pakistan against external aggression or threat of war. This secondary state may exist and operate in either of the two principal "modes". 4. During the course of submissions, our attention was invited to a number of authorities. Of these, three in particular require mention: F.B. Ali v State PLD 1975 SC 506 (hereinafter "F.B. Ali"), Liaquat Hussain and others v Federation of Pakistan and others PLD 1999 SC 504 (hereinafter "Liaquat Hussain") and District Bar Association, Rawalpindi and others v Federation of Pakistan and others PLD 2015 SC 401 ("District Bar Association"). The first case involved consideration of the relevant provisions of the 1962 Constitution. The provisions referred to in para (i) of the short order were inserted in the Pakistan Army Act, 1952 ("Army Act") in 1967. These were enacted at a time when the country was under a Proclamation of Emergency, under Article 30 of the late Constitution which was in pari materia Article 232 of the present Constitution. The acts by reason of which Lt. Col (R) F.B. Ali and his co-accused stood charged and tried by court martial under the Army Act were said to have been done during the period from August 1972 to 30th March 1973. At that time the country was governed by the Interim Constitution, and under a (deemed) Proclamation of Emergency under Article 139 thereof. Again, that provision was in pari materia the present Article 232. In the second of the cases noted above, the country was under a Proclamation of Emergency under Article 232 and the Armed Forces had also been called in aid of civil power under Article 245. At issue was the constitutionality of an Ordinance of 1998, which did not amend or as such directly apply the Army Act but set up military courts outside the military justice system. The third case had to consider certain amendments made to the Constitution itself, which made possible the trial of
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civilians by courts martial under the Army Act, the statute being amended along with the Constitution for such purpose. Those amendments, both constitutional and statutory, were subject to successive sunset clauses which expired in 2019. 5. It will be seen from the foregoing that the present challenge is the first time (other than, perhaps, Shahida Zahir Abbasi and others v President of Pakistan and others PLD 1996 SC 632, where however the matter proceeded on markedly different lines) that this Court has been called upon to directly consider, in the light of fundamental rights, the very basis of the trial of civilians by courts martial at a time when the Constitution is operating in the normal course. The vision of the Court is therefore unobstructed and untroubled by any constitutional occlusions. We will certainly also have to consider the effect of the Emergency provisions. But the pivot on which these petitions turn is the "default" mode of the Constitution. 6. First however, the facts. These will be stated with brevity and at a somewhat heightened level of generality. This is for two reasons. Firstly, as directed in terms of the second and third paras of the short order, there are a large number of persons (and not just the around 103 referred to therein) who will face trials in criminal Courts of competent jurisdiction established under the ordinary and/or special law for the offences of which they stand accused. While those trials will lead to verdicts dependent solely on the evidence led and other material/record as is relevant for criminal trials, the less said here of the factual matrix the better. Secondly, these petitions have, as is clear from the short order and is elaborated below, been decided essentially on the constitutional plane because that was primarily (and in some cases solely) the ground taken before the Court. (There was one petition in which only non-constitutional grounds were taken.) The facts need therefore be stated only to the extent as is required to anchor the considerations relevant for this judgment, and no further. 7. Over two days, the 9th and 10th of May, 2023, a series of events unfolded across the country (though primarily in two Provinces) that saw an unprecedented assault on many military and defense installations, and which included the desecration of monuments commemorating the martyrs of the nation and even the ruination of the official residence of a Corps Commander. The condemnation of these acts was immediate and thunderous. The reaction of the Army High Command was severe as was that of the then Federal Government (comprising of elected representatives), according to the material and record placed before the Court. What is of importance is the statements made, and resolve declared, at the highest levels that the persons who stood accused of these offences were to be tried by courts martial under the Army Act. The petitioners placed reliance on news reports regarding a Special Corp Commanders meeting held at the General Headquarters (GHQ) on 15.05.2023, the 81st Formation Commanders conference held there on 07.06.2023, the approval granted by the Federal Cabinet on 19.05.2023 to decisions taken in the National Security Committee (which were along the same lines) and a resolution moved in the National Assembly and passed by that House on 12.06.2023. 8. We pause to note that all of the petitioners before us were as one in denouncing these acts and events, which none found defensible. All were united in unequivocally stating that those who had committed criminal offences were liable to face in full the awesome majesty of the law. 9. In the immediate aftermath of the events of 9th and 10th May, several FIRs were registered in various police stations across the country. These FIRs were primarily (though not exclusively) in terms of offences committed under the Anti-Terrorism Act, 1997. Some of those FIRs were placed on the record, both with reference to the persons therein implicated but also as a sampling of the factual basis that led to the filing of the present petitions. These FIRs involved initially dozens and then hundreds of persons as the investigations proceeded. These persons were almost entirely civilians who had no, and it appears had never had any, connection with the Armed Forces, though a very few were possibly retired personnel. The criminal courts under whose jurisdiction the
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offences, and hence the accused, came were the Anti-Terrorism Courts (ATCs) created under the aforementioned Act. However, it appears that thereafter, and starting as early as 20.05.2023, the concerned Army authorities made a series of applications before the ATCs, under s. 549 of the CrPC, seeking the transfer and delivery of the accused named therein to the said authorities for their trial, under ss. 2(1)(d) and 59(4) of the Army Act, for offences committed against the Official Secrets Act, 1923. In other words, the Army authorities claimed jurisdiction over the said persons for their trial by court martial. All of these applications were allowed and the named accused, eventually numbering around 103, were delivered to the custody of the Army authorities. This then was the situation that set the stage for, and triggered the filing of, the present petitions. The principal question raised is that it is constitutionally impermissible for civilians to be tried by courts martial under the Army Act. Some of the petitions framed the relief sought with specific reference to the provisions set out in para (i) of the short order, while others stated their claim in broader terms. But, however viewed, the point in issue boiled down to what has just been stated. There was, as noted, one petition that did not raise any constitutional ground for challenging the trial of the civilians by courts martial. 10. With the factual matrix set and the constitutional challenge established, we turn to the submissions by learned counsel for the parties. In Const.P 24/2023 Mr. Ahmed Hosain, ASC submitted contended that s. 2(1)(d), in both its sub-clauses (i) and (ii), was in conflict with the legislative intent of the Army Act, i.e., regulating and maintaining discipline of the members of the Armed Forces in exercise of their duties, and thus directly affected the guaranteed fundamental rights under Articles 9, 10A, and 25 of the civilians brought to trial by courts martial. The provisions did not fall within the scope of the ouster clause under Article 8(3)(a). It was argued that the jurisprudential foundation to strip civilians of their fundamental rights, otherwise not voluntarily regulated by the military laws, did not exist. Learned counsel contended that the courts martial did not comply with the requirements of Article 10A on account of fact that they were manned by Army officers who thereby assuming judicial functions, a substantial right of appeal outside the Army chain of command was non-existent, and the said forums did not fall within the scope of Article 175. Learned counsel challenged the applicability of F.B. Ali and sought to distinguish it on the ground that the 1962 Constitution, in relation to which the matter was decided, did not recognize the fundamental right to a fair trial. More fundamentally, learned counsel sought a declaration that F.B. Ali was wrongly decided. District Bar Association was distinguished on multiple counts, namely: (a) the civilians were there made subject to the Army Act through a constitutional amendment; (b) said amendments had a sunset clause; and (c) the amendments which subjected civilians to courts martial were specifically included in the Part I of the First Schedule to the Constitution. 11. In Const.P 25/2023, Sardar Muhammad Latif Khan Khosa, Sr. ASC contended that trials of civilians by courts martial by virtue of the noted provisions of the Army Act were violative of Articles 4, 9, 10A, 25 and 175 of the Constitution. It was argued that s. 94 of the Army Act, read with Criminal Procedure (Military Offenders) Rules, 1970 (framed under s. 549, CrPC) and in terms of which orders were obtained by the Army authorities for delivery to their custody of persons accused of offences committed on the 9th/10th of May, were discriminatory and violative of Articles 10A, 25 and 175 of the Constitution. Learned counsel argued that the transfer of the custody was illegal as s. 549 was exclusively meant for members of the Armed Forces being handed over to their commanding officers. It was submitted that in the facts and circumstances of the case the 1997 Act was applicable and the accused persons were triable under that law and by the ATCs established in terms thereof. 12. In Const.P 26/2023, Mr. Faisal Siddiqui ASC, at the very outset submitted that he did not challenge the vires of the noted provisions of the Army Act. The stance of learned counsel was that the charging of civilians under the Army Act read with the Official Secrets Act, 1923, in the facts and
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circumstances before the Court was mala fide and discriminatory. Learned counsel argued that the presence of a dual jurisdiction, i.e., criminal courts under the general and ordinary law of the land and courts martial, presented a situation where in the former case the accused retained all rights intact while in the latter they did not. This exercise of unregulated discretion was arbitrary and discriminatory. Reference was made by learned counsel to F.B. Ali and District Bar Association. It was argued that the principle of reasonable classification was a distinguishing feature and civilians should only be subjected to military laws in exceedingly rare circumstances. The present situation was manifestly not one such. 13. In Const.P 28/2023, Mr. Salman Akram Raja ASC made submissions on how, since the judgment in F.B. Ali, the legal landscape had evolved and changed radically. It was argued that in light of Article 175(3) and how this provision had been interpreted and understood by various judgments of this Court, there remained no justification for trial of civilians before courts martial, presided over and manned by Army officers and thus by the Executive branch. In this regard learned counsel submitted that a distinction had to be drawn between the trial of members of the Armed Forces and civilians by courts martial. For purposes of Article 175, he did not challenge the trial of the former; it was only that of the latter that was objectionable. A line was sought to be drawn between the two categories. Learned counsel contended that the instant deprivation of fundamental rights of the accused who stood transferred to Army custody on merely an accusation was contrary to the constitutional scheme and ex-facie discriminatory. In support of his contentions, the learned counsel inter alia placed reliance on Liaquat Hussain, District Bar Association and Mushtaq Ahmed and others v Secretary Ministry of Defence and others PLD 2007 SC 405. 14. Mr. Uzair Karamat Bhandari ASC, representing the respondent No. 9 in Const.P 25/2023, supported the arguments of learned counsel for the petitioners and contended that under the current constitutional dispensation civilians could not be tried by courts martial. Learned counsel relied on Liaquat Hussain and also referred to F.B. Ali. It was argued that the latter judgment was premised on a constitutional context without Articles 175(3) and 10A, and at a time when the period of five years provided under Article 175(3) had not lapsed. He argued that the right of trial and appeal before an impartial forum was a recognized fundamental right well established by, and attested in, the case law and cited various decisions of the Court in this regard. Learned counsel submitted out that if Article 8(3)(a) were not exclusive to members of the Armed Forces and the other disciplined forces therein specifically mentioned, Article 8(3)(b) would become redundant. It was submitted that if at all civilians could be tried by court martial that would require a constitutional amendment and even then would be permissible only in highly exceptional and well-defined circumstances involving matters of national security. 15. Mr. Abid S. Zuberi ASC, appearing on behalf of the Supreme Court Bar Association in Const.P 30/2023 contended that the noted provisions of the Army Act were violative of Article 175, as it thereby led to the creation of a parallel judicial system not under the administrative control of any High Court. It was argued that a civilian's trial by court martial was unconstitutional unless there was a clear nexus between that civilian's actions and the discipline of the Armed Forces. He emphasized even such a nexus was not enough in and of itself. Any such trial had to be under the aegis of a constitutional amendment. Seeking to distinguish F.B. Ali, learned counsel contended that it could not serve as a precedent in this case as the right to enforce fundamental rights were suspended under Article 30 of the 1962 Constitution at the relevant time. Learned counsel asserted that a mere allegation did not automatically make a person an "accused" under criminal law jurisprudence, and thus the application of s. 2(1)(d) could not be triggered merely on such basis. It was argued that until a civilian was formally charged the transferring of custody to the Army authorities under s. 549 CrPC was illegal.
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16. The learned Attorney General for Pakistan, Mr. Mansoor Awan ASC, began his submissions by referring to the voluminous material placed on record, both documentary and pictorial, whereby a detailed account was presented of the events and incidents that took place across the country on 9th and 10th May 2023. The learned Attorney General submitted that the offenses under consideration had a direct nexus with the discharge of duties of the members of the Armed Forces and their functioning. Contesting the submission by learned counsel for the petitioners, the learned Attorney General maintained that no constitutional amendment was required and that the noted provisions of the Army Act were within the scope of Article 8(3)(a). In this regard, the learned Attorney General submitted that ss. 2(1)(d) and 59(4) were directly relatable to the "proper discharge of duties" by the members of the Armed Forces within the meaning of the cited constitutional provision. The events of the 9th and 10th of May were, even on a prima facie basis, an interference with such discharge of duty and thus the accused, though civilians, could be properly made subject to the Army Act and tried by courts martial. The noted provisions, falling as they did within the scope of Article 8(3)(a), were constitutionally protected and immunized from the applicability of fundamental rights. Reliance was placed on Said Muhammad Zaman and others v Federation of Pakistan and others 2017 SCMR 1249. The subjecting of civilians to courts martial, the learned Attorney General argued, was well within the constitutional scheme and in this regard reliance was placed also on clause (3) of Article 199. The learned Attorney General placed strong reliance on F.B Ali, Liaquat Hussain and the District Bar Association and read out lengthy extracts from these decisions. Relying in particular on one of judgments in F.B. Ali (which was not, however, the judgment of the Court), the learned Attorney General submitted that the courts martial had the indicia and ingredients of, and met all the requirements for, a fair trial. In this context, the Attorney General read through, and explained in detail, the working of the various stages of trial before a court martial as set out in the Army Act and the Pakistan Army Act Rules, 1954 ("1954 Rules"). On instructions, the learned Attorney General more than once made a categorical statement at the bar that in addition to safeguards already built into the system which ensured a fair trial, the evidence to be recorded in the trials of the around 103 persons would have two additional measures. Firstly, the evidence would be recorded in full compliance of the requirements of the Qanun e Shahadat Order, 1984 and secondly, full reasons would also be given for any verdict of guilt handed down by a court martial. Thus, the learned Attorney General emphasized, there could not possibly be any danger to any rights of the said civilians for purposes of ensuring a fair trial. The learned Attorney General further submitted that the courts martial established under the Army Act were not courts within the meaning of Article 175(1). They were, rather, special tribunals constitutionally sanctioned. Reliance was placed on various cases in this regard. It was contended that the challenges to the trial by courts martial of civilians on both constitutional and other grounds were without merit and failed. The petitions ought therefore to be dismissed. 17. Having heard learned counsel for the respective parties and after consideration of the case law and the material placed on record, we concluded that the petitions ought to be disposed of in the manner as set out in the short order. 18. We begin by taking a look at the provisions noted in para (i) of the short order. Both were added to the Army Act in 1967, by two Ordinances (respectively III and IV of 1967) each of which was purely amending in nature. By reason of clauses (3) and (4) of Article 29 of the 1962 Constitution, these Ordinances, having secured the approval of the National Assembly, were deemed to have become Acts of the Central Legislature. Both clause (d) of s. 2(1) and s. 59(4) have remained unamended since then. Subsection (1) of s. 2 lists the persons who shall be subject to the Army Act, and clause (d) provides as follows: "(d) persons not otherwise subject to this Act who are accused of--
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(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 otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923;" 19. As the word "accused" indicates, a person not otherwise subject to the Army Act becomes so subject only if he (or, to say it once and for all, she) commits a criminal offence that falls in either of the sub-clauses.…
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