Islamabad:
The Supreme Court has argued that the trial of civilians under the law of the Army does not violate the standards of fair trial, since the Constitutional Bank issued its detailed trial on Monday, more than four months after setting aside a previous ruling of the Apex Court that had declared such unconstitutional judgments.
For a majority of 5-2, the Bank reaffirmed its brief order of May 7. Two judges, Justice Jamal Khan Commandkhail and Judge Naeem Akhtar Afghano, moved, arguing that the military judgments of civilians were unconstitutional.
“The conduct of the trials under the Law of the Army, where it is exercised within the legal limits and backed by procedural safeguards, does not violate the standards of just trial. The contested judgment erred to maintain the opposite,” Judge Aminuddin Khan wrote in the 68 -page verdict.
The judgment examined whether the civilians’ judgments under the Army Law complied with the requirements of equity, impartiality and due process guaranteed by virtue of article 10 of the Constitution, and if the military courts constituted a constitutionally adequate forum to judge such cases.
The sentence said that the Army Law, as a legislative framework, provided for an internal procedure structure that included detailed rules of evidence, the rights of the accused to be informed of the positions, the right to advice, the interrogation of witnesses and the appeal review through section 133-B.
“These safeguards are integrated into the military justice system, as this court said in Shahida Zahir Abbasi in 1996,” he said, and pointed out that in international law, including article 14 of the International Covenant on Civil and Political Rights (ICCPR), military courts were not perseiled not belonging.
“What is required is that such courts allow basic guarantees of justice, including an independent appeal process. The Army Law, through its internal review structure, satisfies these minimum standards,” said the court.
“The fair trial does not require that each forum be identical in structure to the regular courts. What it demands is that the forum be fair, impartial and governed by transparent rules. The Army Law, as is framed and applied in the current context, meets this constitutional requirement.”
On the question of whether the award by the military courts in relation to civilians infringed the constitutional principle of separation of powers established in article 175 (3) of the Constitution, and if said adjudication is equivalent to an unconstitutional usurpation of the judicial authority, the trial indicated that the Constitution does not prohibit the establishment of specialized forums outside the reach of the request of the request of the petition 175. or the trial did not produce the establishment of the specialized forums. Constitutional guarantees of equity.
The court also argued that an adequate understanding of article 175 (3) required to recognize the functional role of military justice. “Military courts address crimes that have a direct relationship with national defense and military operations,” he said.
“They do not exist to replace civil courts, but to operate within a closely defined legal space to serve in purposes that civil judicial forums are not equipped to address. Its jurisdiction, therefore, must be understood in the context of the operational demands, instead of in the abstraction of them.”
The sentence said that military justice in Pakistan had developed as a legal system structured with defined jurisdiction, procedural safeguards and limited scope. “It is not a discretionary mechanism or ad hoc, but a coded and historically entrenched system. When its jurisdiction over civilians is fidelity to the legal purpose and military need, it does not violate article 175 (3).”
Although article 10 of the Constitution was not applied directly to the Law of the Army of Pakistan due to the exclusion provided by article 8 (3) (a), the sentence was observed, the minimum standards of equity and procedural justice were embedded within article 4 of the Constitution, which affirmed that “each individual will be treated in accordance with the law.”
These standards also find reinforcement in the international obligations of Pakistan under article 14 of the ICCPR, which demanded that persons accused of criminal crimes must be entitled to an impartial hearing by a competent, independent and impartial court established by law.
The sentence argued that the appropriate constitutional response was not to reduce the existing provisions, but to recognize that, although the Army Law provided the due process of basic procedure in the form, it lacked the structural guarantees necessary for a fair appeal forum in the case of civilians.
“Therefore, the legislative framework must be complemented to provide an independent right to appeal to the higher courts by civilians sentenced under said provisions,” the court ruled.
The Court also argued that although the procedural framework under the Army Law includes formal protections due to due process, the absence of an independent right to appeal to a civil court made its request to constitutionally incomplete civilians.
“The provisions are not inherently unconstitutional, but this deficiency requires legislative intervention. Therefore, this Court refers to the matter to the Parliament for the promulgation of appropriate amendments, with the expectation that said institutional deference will be granted due respect,” he said.
“The Government and Parliament are urged to undertake the necessary amendments or promulgate adequate legislation in the Law of the Army of Pakistan, 1952, and the allied rules within a period of 45 days to provide an independent right of independent appeal in the higher courts against sentences presented by the martial or military courts of the courts with respect to the offenses under subclauses (i) and (ii) (d) of the subsections (1) of the cétima of the center 2, with respect to the offenses of the subclauses (i) and (ii) of the Clausa (d) of the subsections (1) of the center of the Cup of the Courts of the Cup, 1, 1).
The court also argued that the judicial function was to interpret, not legislate. The court reiterated the principle that constitutional award must be limited within the contours of the text.
The Constitutional Bank said that the previous bank of the Supreme Court made an error by ignoring the doctrines of constitutional avoidance and interpretive restriction, adding that demolishing the provisions in its entirety lacked proportionality and doctrinal support.
“Therefore, the contested trial can be reserved to exceed the minimum correction required under the Constitution,” the sentence said. He pointed out that although the requests implied issues of public importance and the violation of fundamental rights, the original bank did not meet the twin requirements to invoke the extraordinary original jurisdiction of this Court: the existence of a matter of public importance and the alleged violation of a fundamental right.
“This jurisdiction should not be invoked casually; rather, it is a tool of the last resort for issues of deep constitutional importance, said the detailed judgment.” The contested judgment is fatally defective for its inability to explicitly and convincing this preliminary jurisdictional objection. “
Continuing, the sentence said that the decision of the SC Bank to proceed without a clear and reasoned to find about maintainability was not a mere analytical omission but a serious abandonment of judicial duty.
“Article 184 (3) is a powerful constitutional provision, and its application cannot be presumed or assumed. This court considers that the silent assumption of the jurisdiction of the contested sentence was a dangerous precedent that must be corrected.”
