Interpretation vs legislation

The Constitutional Bench has touched upon an issue of extreme public importance as it too found itself in a zigzag situation while interpreting Pakistan Army Act, 1952, in conjunction with fundamental rights enshrined in the Constitution. Justice Aminuddin Khan — justifying the May 7 short order on a set of 38 intra-court appeals — yesterday remarked that the absence of an independent right of appeal to a civilian court has rendered its application to civilians constitutionally incomplete. His prescription to seek the parliament's input to overcome the lacunae is a step in the right direction. The learned judge also observed that the October 2024 order wherein a majority judgment had barred civilian trial in military courts was "more akin to legislation than interpretation".

The bone of contention is Article 8(3)(a), a self-contained constitutional provision which categorically exempts laws enacted for the Armed Forces from the operation of fundamental rights. Thus, there is a gap in seeking remedy through right of appeal in the high court against convictions rendered by court martial or military courts. The direction from the Lord urging the parliament to undo the deficiency in 45 days is, thus, worth-appreciating.

While the apex court had ruled that civilians cannot be tried by the military, many have begged to differ in the context of constitutional interpretation itself. As observed by Justice Muhammad Ali Mazhar, provisions of the Army Act extending jurisdiction to certain civilians "have stood connected appeals for several decades", receiving the tacit approval of successive legislatures and the silent acquiescence of the Supreme Court.

This ambiguity needs to be addressed, and as pointed out by Justice Aminuddin, the adjudicatory authority exercised by military courts over civilians does not infringe the constitutional doctrine of separation of powers. Reading in the perspective of Article 245 that empowers the armed forces to act in aid of civil authority, the court noted that the Army Act meets the requirement of fair trial. Yet, there is need to insert conjunctions for the sake of fair play, transparency and upholding of fundamental rights.