‘Conflicting with Constitution’: Army Act provision can be cancelled, says apex court
The Army Act came under scrutiny on Monday during a Supreme Court hearing of a petition filed against the law for its provision that no reason needs to be provided for a court martial once it has been issued.
The apex court observed that this provision, known as a non-speaking order, conflicts with Article 10-A of the Constitution and can be cancelled on the basis of Article 25.
A three-member bench headed by the chief justice directed the army’s counsel to seek advice from the defence ministry in order to remove this legal flaw, and then to inform the court.
The court stated that although it could cancel the relevant law under Article 25 by holding it discriminatory, the institution concerned can also remove the flaw my making necessary amendments.
Petitioner Colonel (retd) Akram told the court that anyone convicted under a court martial is neither provided a copy of the decision, nor the reasons for the decision – and that this system creates hurdles in filing an appeal. He appealed to the court to direct the army to amend the relevant law under basic constitutional rights.
Akram also informed the court that such amendments have already been made in the Navy and Air Force acts and, therefore, there was no justification for not making such an amendment in the Army Act.
The army’s lawyer had pleaded that the Army Act was older than that for the other armed forces and that if the request of the petitioner was granted, as much as half of the act would have to be revised.
Justice Gulzar Ahmed said that the trial procedure has changed after the inclusion of Article 10A in the Constitution and transparent trials and proceedings have become a basic right now. Anything that violates this right will become null and void.
The army’s counsel sought time to seek advice from the relevant authorities and said that a detailed discussion would be held at the defence ministry. The court, however, advised him to seek initial advice from his client and inform the court today (Tuesday) as to whether the army was in agreement over making an amendment to the law.
Kayani’s extension challenged
Meanwhile, a former army officer, challenging the legality of the extension of Ashfaq Parvez Kayani’s service, appealed to the Islamabad High Court (IHC) to hear his petition on an urgent basis, in view of the army chief’s recent ‘political statements’.
The application for an early hearing is to be presented before the IHC today.
Petitioner Colonel (retd) Inamur Rahim, who is also the convenor of the Ex-servicemen Legal Forum, filed an application for an early hearing of the Intra Court Appeal (ICA) against the extension of Kayani’s service after he crossed the age of superannuation.
The petitioner maintained that Gen Kayani, assuming himself to be a public servant on the basis of an illegal extension of service beyond the age of 60 years, issued a political statement, which disturbed “the whole society”. He added that had he been subject to the Army Act, he would not have dared to issue a statement of that kind in violation of the oath of a legitimate chief of army staff. (WITH ADDITIONAL REPORTING BY OBAID ABBASI IN ISLAMABAD)
Published in The Express Tribune, November 13th, 2012.
COMMENTS (22)
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Army ready to amend 1952 Act, SC told ,,,,nice to learn it.. as some dracolian laws have been ammended in recent parliament, similar these law of our Armed forces were very need to be ammend ,, there is hurdle in consitution under article 199/3 (An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member of the Armed Forces of Pakistan or as a person subject to such law) …… DUE TO THIS BAR MANY ARMED FORCES DISMISSED.COURT MARTIAL ,THOUSANDS, PERSONS WITH OUT LEGAL REMEDY IN SUPERIOUR COURTS/CONSITUTIONAL COURTS. its emazing a person Oath to Uphold the consitution ,,, but when he goes for remedy to consitutional court ,..., The court replies ,,, I have not Jurisdiction,,, !!! LET IT BE NECESSARY TO CLEAR THERE. IN 2009 LHC in (clc 2009 page 1283) sitting Molive (R) Anwar Ul Haq declared it against the INJUCTION OF ISLAM. as law maker knows ,,Fedral sheriat court has power to test any vire of consitution where it is according to islam.. same happend in PLD 1994 SC 72. these two above preceedings were admitted by SHC in a C.P 3617/10 justice Mr. Justice Mushir Alam & Mr. Justice Irfan Saadat Khan.. some other case law. PLD 2009 FST 36 , PLD 1989 QUETTA 6. army act naval ordianance airforce law were needed to be ammend in above dicussion, because these were in contra to consitution islam against Art.2-A 10-A ,25, the Consitution of Islamia Jamhoria Pakistan, U.S. Supreme Court appellate jurisdiction over all military cases (United State Vs Stevenson) 2008
I think Gen Kayani is not fault of extension of service he was granted. In fact it is the authority that grranted extention of service to COAS. Why the petition was not filed against that person who granted extention.
Writ petition under Article 199 of the Constitution can only be filed by aggrieved person, the Colonel is not personally affected or non of his rights, appear to have been violated by extension of General Ashfaq perveze Kiyani in any manner whatsoever. This petition also is hit by Article 199 (3) which says, " An order shall not be made under clause (1) on application made by or in relation to a person who is a member of the Armed Forces of Pakistan, or who is for the time being subject to any law relating to any of those Forces, in respect of his terms and conditions of service, in respect of any matter arising out of his service, or in respect of any action taken in relation to him as a member Armed Forces or as a person subject to such law." Article 8 (2) which states that any law which abridges any of the fundamental rights conferred vide Articles 8 to 28 shall, to the extent of such contravention be void; this provision, vide article 8 (3) is not applicable to any law relating to the Armed Forces which is reproduced below: " The rovisions this Article shall not not apply to :- (a) any law relating to the Armed Forces, or of police or such other forces as charged with the maintenance of discipline among them, thus any provision of the Army Act cannot be struck down only because it is ultra vires of the Constitution. The speech made by the Chief of Army Staff is objectionable,likewise the Chief Justice has been making such speeches on daily bases. He declared that Baluchistan Government has lost its right to govern,the verdict or the statement, is clearly contrary to the constitution, the Army take overs had always been given Constitutional validity by the Supreme court.
@Amir:
Isnt he the same General under whose watch soldiers are beheaded daily by Taliban and he fails to protect the citizens of Pakistan? Pakistan Army should first do its own job then think of doing other peoples work.
Amir- lol @ publicly. There's no need to attach public in your sentence since it does not represent many of us. Agree with @gp95 & @Mirza.
Publically Gen Kiyani is the only ray of hope in the current situation. So called judiciary is absolutely playing in the hand of enemy.
Save Armed Forces- Save Pakistan
@A J Khan: Your desire for a strong army is totally understandable. But accountability of individuals does not make an institution weaker, it makes it stronger. IN US and India there is a strong tradition of army under civilian control and generals not being spared the accountability . This has not weakened either army.
Aye Watan kay Sajeelay Jawano... Please come back to where you were in 1965
Court's hollow threats impress no one. If the clause is against Constitution what is the Court waiting for?
In the first place law is absurd and now that it is there, it MUST be revised to comply with basic human rights- Army should now accept that its not above others and has to be responsible for its acts
Woho the judiciary is being used
I support the Supreme Court in any steps it takes to bring the Army Act in compliance with the Consitution
Well bowled Supreme Court. The in-swinger has uprooted the center stump. Now the Supreme Court is really showing it can bowl googlies, doosras, off-cutters and a variety of balls in an over. The PCB and the country had better wake up to the "Fang and Claw," of the Supreme Court. If the Air Force and Navy can wake up to the "Call of the Wild," (citizens) so can the Army. (Jack London will love to be here). Supreme Court...Salams.
Conflict with constitution is most visible in the Courts. 1. PCO Judges. 2. No case ever settled by Supreme Judicial Consul. 3. CJ appointed through administrative order.
Can the PANGA be postponed for some other time.
The Court should not try meddling so much that the Army Discipline is also compromised
why don't they learn from the cases of US General John Allen and then CIA Chief David Petreus?
When yesterday's immature and corrupt democratic politicians shall know and admit it that in Pakistan army officials can't be prosecuted in any civil courts including Supreme Court except in army courts by martial law only and why yesterday's immature and corrupt democratic politicians waste their time and money on this their useless efforts??????? Prosecution in Pakistan of army officials in any civil courts is only a daydreaming and stargazing which can never be come true and I am proud of my Pakistan armed forces.... So yesterday's immature democratic politicians must know and admit it now that they can never make army's and army's officials answerable before the parliament and judiciary and also can never make army's and army's officials their subservient from all aspects......
In other words army runs Pakistan like it is an ancestral property.
Everything in the country should be under the constitution with no excuses or exceptions. Enough is enough, now time to obey the law of the land.