The Pakistan Army Act 952, the Pakistan Air Force Act 953, and the Pakistan Navy Ordinance 961 were the first pieces of legislation to establish military tribunals for the purpose of punishing military personnel and to extend the exception to try civilians under military laws, unlike many other nations around the world, according to Hafiz Ahsaan Ahmad Khokhar, a Supreme Court advocate and well-known constitutional expert.
He said the Defence Services Laws Amendment Ordinance, 3 and 4 of 1967 made the first changes to Section 2[(d)(1)(2) and in Section 59 of the Pakistan Army Act, bringing into its scope civilians who were charged under the Official Secrets Act of 1923 with overriding effect on other laws. However, civilians can only be prosecuted under the Army Act by a federal government order.
The Supreme Court carefully considered the legality and constitutionality in the Brig (Retd) F.B. Ali case, which is reported as PLD 1975 SC 506, and the court held that a civilian who is typically subject to the country’s ordinary law may be tried by a Military Court. This is the first time that a legal expert has made this claim. The Islamic Republic of Pakistan’s 1973 Constitution, which serves as the cornerstone of our Constitution’s fundamental rights guarantees, and later through judgments PLD 2007 SC 405, PLD 2015 SC 401, and 2017 SCMR 1249, where the Supreme Court carefully evaluated the validity of Ordinance No. 3 of 1967 from a variety of angles including by declaring not against the independence of the judiciary, not contrary to the basic structure of the Constitution, not created a new offense and declared a valid piece of legislation, thus civilians can be tried under the Army Act on violations of civil offense as per section 2(d) and section 59 of the Army Act 1952.
According to the legal expert, the Supreme Court further ruled in Said Zaman Khan v. Federation of Pakistan (2017 SCMR 1249) that although the crime of which the convict was accused was punishable under the ordinary law of the lands and triable by a Criminal Court, it has constituted a Civil offense as per subsection (3) of section 8 and is subject to be tried by the FGCM because of the provisions of the Army Act.
According to Hafiz Ahsaan Ahmad Khokhar, the Supreme Court has heard cases involving the interpretation of the Constitution and the Army Act’s amendments through benches with 3, 5, and 17 judges. As such, if the Constitution’s touchstone requires interpretation of these amendments to be upheld or overturned, it would be more appropriate to constitute a full court rather than the current bench of 7 judges.
Pakistan Army Act of 1952, the Pakistan Air Force Act of 1953, and the Pakistan Navy Ordinance of 1961, among other laws, could not be challenged because they were exceptions and a part of the Fourth Schedule of Part 1 of the Constitution, according to Hafiz Ahsaan Ahmad Khokhar. However, Article 8 relevant to the subject controversy has also provided an exception that these laws could not be challenged on the touchstone of Article 8 of the Constitution, so it would be more essential to determine whether these petitions can be maintained under Article 184 (3) of the Constitution before bringing the actual legal dispute before the Supreme Court. In particular, the Supreme Court has already upheld the contested portions of the Army Act through a number of judgments, more than the current number of judges hearing the present case.
According to Hafiz Ahsaan Ahmad that it would be very difficult for the Supreme Court to issue interim orders suspending the ongoing process started by the Army Act without first pausing the contested provisions of the Army Act of 1952, going before Parliament’s legislative authority, and reviewing earlier judgments of the Supreme Court that validated these provisions, which were more in the present strength of judges.
