Pakistan Army Act, 1952: Provisions now cannot be termed unconstitutional, illegal: SCBA

ISLAMABAD: The Supreme Court Bar Association (SCBA) submitted that provisions of the Pakistan Army Act, 1952 which have been upheld by the courts, cannot now be termed as unconstitutional and illegal.

The SCBA on Thursday filed a written submission before a seven-member Constitutional Bench of the Supreme Court, headed by Justice Aminuddin Khan. The bench heard intra-court appeals (ICAs) against the apex court’s decision on trial of civilians by military courts.

“It is for the Supreme Court to interpret the provisions of applicable law and determine their constitutionality as well as the applicability in the given facts and circumstances of each case,” it added.

Articles 4, 9, and 10A: Civilians cannot be tried by military courts, SC told

Senior advocate Hamid Khan, who appeared on behalf of Lahore High Court Bar Association (LHCBA), gave constitutional history of the country and the military law. He started from Indian Act 1911, which was repealed in 1951. He said after that country passed Pakistan Army Act, 1952.

He argued that the Martial Law, military courts and the trial by military courts have nexus. He contended that there were provisions in the Constitutions of 1956 and 1962 to indemnify the martial laws, which are no longer in the 1973 Constitution. He told that under Article 223A of the 1962 Constitution, Martial Law could be given indemnity. However, Justice Muhammad Ali Mazhar noted that now the indemnity could be given to martial law at any time, as Article 237 of 1973 Constitution gives blanket power to the Parliament to indemnify the martial law.

Not agreeing, Justice Jamal Khan Mandokhail said now the martial law cannot be imposed because of Article 6 of the constitution and the judgment against General (retired) Pervez Musharraf.

Hamid Khan maintained that the Supreme Court judgment in Sindh High Court Bar case closed the chapter of martial law in the country, while its judgment in Rawalpindi District Bar Association (RDBA) case has put an end to the trial of civilians by Court Martial, as now for civilians’ trial there are certain conditions. The civilians’ trial in RDBA case was allowed because it was for specific purpose and persons.

Justice MussaratHilali questioned whether constitutional amendments are required in the instant matter, adding that the constitutional amendments were required for the trial of terrorists, who had attacked Army Public School in Peshawar, because at that time both the parties were civilians, but here in this case one party is civilians, while the other is army itself.

Hamid Khan said there was sunset clause in 21st Constitutional Amendment case; therefore, the Court had allowed the civilians trial, adding if this clause had not been in the law then Court might have struck down the provision. He replied that in the case of Army Public School attack, there were admitted facts, but no clarity in 9th May incidents; therefore, seeking to set up commission to probe them.

The LHCBA lawyer further argued that the appeal was provided to the accused in RDBA case and it was said that the military courts’ decisions will be subject to judicial review by the High Court and the Supreme Court. He said for maintaining discipline within army there should be a law, but civilians should not be tried under the Army Act.

Hamid Khan emphasised that to give judicial power to another other organ of the State is the violation of the basic features of the constitution. The trial before the military courts take away the fundamental rights; therefore, it is violative of Article 25, which talks about equality of all citizens before the law. He said in democracy there is no concept of military court.

Justice Syed Hasan Azhar Rizvi questioned whether any accused had challenged his transfer to military authority or his conviction by the Court Martial. Hamid Khan said that the fundamental rights would be meaningless if the courts are not independent, adding there was no notification that Corps Commander House in Lahore was declared a prohibited area.

Justice Amin stopped the LHCBA lawyer from discussing factual aspects of the case, saying these issues could be raised before the appellate forum. Justice Mazhar said not only Corps Commander, but there are 18 to 20 military installations that were attacked. Justice Rizvi said only 16 rioters are accused of attacking Commander House, while other accused were arrested from different locations.

Justice Mandokhail said there are two offences, seducing which fall under Section 2(1)(d) of the Army Act, while other offences relate to Official Secret Act, 1923, which may be tried by the civil courts. He said there is no restriction that appeals cannot be filed before the civil courts.

Justice Mazhar said if the military courts have not awarded sentence in other offences then those have finished, adding this would not happen that the accused would now face another trial before the civil courts.

The case is adjourned until Monday.

Copyright Business Recorder, 2025