The May 2025 ruling explicitly ordered the government and Parliament to address this deficiency
ISLAMABAD:
A year after a ruling, the higher judiciary 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 a key due process safeguard in limbo.
In its majority judgment written by Justice Aminuddin Khan on May 7, 2025, the Supreme Court upheld the military trials of over 100 PTI activists involved in the May 9, 2023 attacks on military installations.
However, the same ruling recognized a critical legal loophole, holding that while the Pakistan Army Act provides for procedural due process in form, it lacks the structural safeguards necessary for a fair appellate forum for civilians.
The ruling explicitly ordered the government and Parliament to address this shortcoming. It stated that the legislative framework should be supplemented to provide civilians convicted under military law with an independent right of appeal to higher courts.
“We, in unison, raise awareness of the need for legislative changes, which also comply with the requirements established in the International Covenant on Civil and Political Rights (ICCPR) to maintain and preserve constitutional and social norms in 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 for consideration and making necessary amendments or legislation in the Pakistan Army Act 1952 and its related rules within 45 days.
The amendments are intended to provide an independent right of appeal to the High Court against sentences passed by courts-martial or military courts to persons under sub-sections (i) and (ii) of sub-section (d) of sub-section (1) of section 2 of the Pakistan Army Act, 1952 read with sub-section (4) of section 59 of the same Act.
Two judges, Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan, dissented and held that military trials of civilians were unconstitutional.
Despite the time-bound directive, the federal government did not challenge the portion of the ruling requiring appeal rights or introduce the required legislation. Initially, officials had indicated that a bill would be introduced, but there was no progress. Later, former Chief Justice Jawad S Khawaja filed a contempt petition against Prime Minister Shehbaz Sharif for not implementing the court order.
Parallel legal challenges also arose, with some petitioners filing petitions for review against the ruling’s endorsement of military trials. Following the 27th Amendment, the matter was transferred to the Federal Constitutional Court (FCC), headed by Justice Aminuddin Khan, author of the original majority ruling.
However, since its transfer, the FCC has not taken up the case. Meanwhile, people convicted by military courts remain deprived of an independent right of appeal.
Legal experts have expressed grave concern about the continued inaction.
Lawyer Faisal Siddiqi said the limited relief of a right to appeal granted by the “judicial power of the 26th Amendment” had been effectively 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 pointed out that the SC had allowed military trials of civilians on the condition that an independent right of appeal be provided, a condition that remains unfulfilled. He called this a serious concern for fairness and due process, adding that the FCC, now with jurisdiction, must ensure the execution of the ruling.
Lawyer Asad Rahim Khan argued that even the limited appeal safeguard was insufficient from the start.
“However, even when it came to concessions, this one was also stopped. After all, the main consequence of the decision was not to provide an additional floor of appeal. It was to validate civilian military courts outside of a declared state of emergency and outside of a constitutional amendment, for 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.
Lawyer Sameer Khosa said the ruling by the Constitutional Bench of the Supreme Court required the federal government to appeal to the convicts, but the government has not even attempted to offer one.
Lawyer Rida Hosain, who assisted one of the petitioners challenging the military trials, says the Supreme Court accepted that there was no independent right to appeal under the Army Act. Under military law, the right to appeal rests with an appeal court composed of the Chief of Staff of the Army or one or more officers designated by him. The appeals forum is made up 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 not taken steps to initiate legislation. Those convicted by military courts are left without access to an independent appeals forum. The consequences of inaction are harsh. Civilians have been deprived of their liberty by military courts without any independent appeal. The lack of legislation destroys the constitutional promise of due process and protection against wrongful deprivation of liberty. It places citizens at the mercy of a system that is structurally incapable of independent appeal. The government’s inaction reflects its absolute disregard for court orders,” he adds.
Lawyer Rida Hosain further claims that Jawwad S. Khawaja has filed a contempt petition against Prime Minister Shehbaz Sharif for failure to comply with a court order within a given time. The contempt petition has not been set for hearing. Neither the government nor the judiciary seem interested in seeing the court’s orders implemented. The duty of a court does not end with rendering a decision. It must guarantee its application.”
