— Trial of civilians by courts martial — Jurisdiction of courts martial — Legislative competence to establish courts martial — Scope — Petitioners challenged the trial of civilians under the Pakistan Army Act, 1952, following unprecedented events on 9th and 10th May, 2023, which included assaults on military installations and desecration of national monuments — The Army High Command and the Federal Government condemned the acts, expressing the intent to conduct trials through courts martial — FIRs were registered against civilians and they were transferred for court martial trials, leading the petitioners to challenge the constitutionality of trying civilians in military courts — Petitioners contended that courts martial were not courts at all, and hence no jurisdiction could be conferred on them by reason of the embargo contained in Article 175(2); that even if they were courts, they violated the requirement of Article 175(3) inasmuch as they were manned by military officers, i.e., the executive branch and that while the constitutional status of courts martial might be acceptable for the members of the armed forces but subjecting civilians to trial before such a forum should be deemed unconstitutional — Validity — It would be incorrect to test courts martial on the anvil of clause (3) of Article 175 — The separation thereby required seeks to disentangle a prior amalgam between the judiciary and executive of an entirely separate and different nature — It has nothing to do with courts martial — However, courts martial cannot be created outside of, or be allowed to exist and operate independently from the military justice system created by and under a statute of the nature of the Pakistan Army Act, 1952 — The authority to include clause (d) in S. 2(1), allowing the trial of civilians by courts martial, is vested in entry no. 1 of the Federal Legislative List — The trial of civilians by court martial is very much an ancillary or subsidiary function of such forums — Existing as they do within the military justice system, and confined as they are to the four corners of the Pakistan Army Act, 1952, the principal function (indeed, their raison d’être) is to deal with the members of the Armed Forces — The subsidiary nature of the legislative competence with regard to civilians is further indicated by entry nos. 58 and 59 of the Federal Legislative List which relate respectively, to matters within the legislative competence of the Federation or relating thereto, and matters incidental and ancillary to others provided in the Schedule — Thus, courts martial and the military justice system, are within the scope of the legislative competence. [2023 SCLR 31 = 2023 SCMR 1732]

—  Trial of civilians by courts martial: violative of fundamental rights — Scope — Petitioners challenged the trial of civilians under the Pakistan Army Act, 1952, following unprecedented events on 9th and 10th May, 2023, which included assaults on military installations and desecration of national monuments — The Army High Command and the Federal Government condemned the acts, expressing the intent to conduct trials through courts martial — FIRs were registered against civilians and they were transferred for court martial trials, leading the petitioners to challenge the constitutionality of trying civilians in military courts — The petitioners argued that sections 2(1)(d) and 59(4) were in conflict with fundamental rights, specifically Articles 10A and 9 — They contended that, due to Article 8(3)(a), civilians brought before courts martial were deprived of these fundamental rights — Validity — For persons other than the three categories of State employees specified in Article 8(3)(a), and especially in relation to civilians, any and every law claiming to be within the contemplation of the said provision must pass through the sieve of clause (5) of Article 8 and also, if so required, be tested on the anvil of any violation of a particular and specified fundamental right — It is only in this way that the provisions that can permissibly be incorporated within the law can be identified, and those impermissibly planted there excised — Any other approach would result in Article 8(3)(a) ceasing to be an “ouster clause” subject to strict interpretation — Sections 2(1)(d) and 59(4) are ultra vires the Constitution, with particular reference and regard to clause (5) of Article 8. [2023 SCLR 31 = 2023 SCMR 1732]

— Trial of civilians by courts martial — Critical analysis of S. 59(4) and limitations on its validating function — Scope — Section 59(4) cannot be regarded as a validating clause for several reasons — Firstly, the primary purpose of S. 59(4) is to address the objection that an accused was not subject to the Pakistan Army Act, 1954 when the offense was committed — Secondly, the rationale behind validating clauses is to retroactively validate actions that were initially found to be unlawful or unconstitutional, assuming the law as subsequently enacted could have been in effect at the time of the impugned action — However, this rationale doesn’t apply to offenses under section 2(1)(d), as a civilian would not have been subject to the Pakistan Army Act, 1954 when the offense was committed — The civilian becomes subject to the Pakistan Army Act, 1954 only later when charged, and it would be inappropriate to interpret section 59(4) as covering and legitimizing acts done prior to the charging for the offense, especially if those acts were initially unlawful. [2023 SCLR 31 = 2023 SCMR 1732]

— Trial of civilians by courts martial — Proper sequence for charging civilians — Scope — In respect of section 2(1)(d) and offences within the scope of either of its sub-clauses, the lawfully correct procedure and manner is for the civilians to be charged for the relevant offence outside of the Pakistan Army Act, 1952 and by a Court of competent jurisdiction — It is only then that such civilians, having become subject to the said Act, can lawfully be taken into custody by the Army authorities and proceeded against in terms of that statute, by way of court martial. [2023 SCLR 31 = 2023 SCMR 1732]

—  Trial of civilians by courts martial: violative of fundamental rights despite proclamation of emergency — Scope — Even when the Constitution is operating in the emergency mode, i.e., under a Proclamation of Emergency, and even if that Proclamation is “bolstered” by an Order under Article 233(2), sections 2(1)(d) and 59(4) of the Pakistan Army Act, 1952 would be, and remain, ultra vires the Constitution, on account of the continued protection provided by Article 8(5). [2023 SCLR 31 = 2023 SCMR 1732]

— Trial of civilians by courts martial — Prerequisites for S. 549 applicability — Scope — For S. 549 to apply at all, the civilian must be charged with the offence that can be tried either by the ordinary law or a court martial — It is the very charging of the civilian for the offence that alone makes him subject to the Pakistan Army Act, 1952 and hence liable to be handed over to the Army authorities and triable by court martial. [2023 SCLR 31 = 2023 SCMR 1732]

— Trial of civilians by courts martial — Scope — Clause (d)(ii) of section 2(1) of the Pakistan Army Act, 1952 broadly relates to the protection and preservation of the defence installations — The incident that could attract the applicability of these provisions must have been done with the intention or object of causing damage to the defence of Pakistan — Furthermore, it is not the commission of any offence by a civilian under the Official Secrets Act, 1923 relating to any ‘work’ or ‘affair’ of the Armed Forces that can make that civilian subject to the Army Act, but the offence must relate to such work or affair of the Armed Forces that is an integral part of their core function of defending Pakistan against external aggression or threat of war, which is missing in the case of the 103 civilian protesting perpetrators involved in the incidents of the 9th and 10th of May 2023. [2023 SCLR 31 = 2023 SCMR 1732]

— Trial of civilians by courts martial — Scope — Section 2(1)(d)(ii) of the Pakistan Army Act, 1952 would apply to an offence under the Official Secrets Act, 1923 which relates to any ‘work’ of the Armed Forces that has a direct and close nexus with the defence of Pakistan or to any ‘affairs’ of the Armed Forces that has such a nexus with the defence of Pakistan, and is committed with the intention or object of causing damage to the defence of Pakistan. [2023 SCLR 31 = 2023 SCMR 1732]

—  Trial of civilians by courts martial: violative of fundamental rights — Scope — Petitioners challenged the trial of civilians under the Pakistan Army Act, 1952, following unprecedented events on 9th and 10th May, 2023, which included assaults on military installations and desecration of national monuments — The Army High Command and the Federal Government condemned the acts, expressing the intent to conduct trials through courts martial — FIRs were registered against civilians and they were transferred for court martial trials, leading the petitioners to challenge the constitutionality of trying civilians in military courts — The petitioners argued that sections 2(1)(d) and 59(4) were in conflict with fundamental rights, specifically Articles 10A and 9 — They contended that, due to Article 8(3)(a), civilians brought before courts martial were deprived of these fundamental rights — Validity — For persons other than the three categories of State employees specified in Article 8(3)(a), and especially in relation to civilians, any and every law claiming to be within the contemplation of the said provision must pass through the sieve of clause (5) of Article 8 and also, if so required, be tested on the anvil of any violation of a particular and specified fundamental right — It is only in this way that the provisions that can permissibly be incorporated within the law can be identified, and those impermissibly planted there excised — Any other approach would result in Article 8(3)(a) ceasing to be an “ouster clause” subject to strict interpretation — Sections 2(1)(d) and 59(4) are ultra vires the Constitution, with particular reference and regard to clause (5) of Article 8. [2023 SCLR 31 = 2023 SCMR 1732]

— Trial of civilians by courts martial — Critical analysis of S. 59(4) and limitations on its validating function — Scope — Section 59(4) cannot be regarded as a validating clause for several reasons — Firstly, the primary purpose of S. 59(4) is to address the objection that an accused was not subject to the Pakistan Army Act, 1954 when the offense was committed — Secondly, the rationale behind validating clauses is to retroactively validate actions that were initially found to be unlawful or unconstitutional, assuming the law as subsequently enacted could have been in effect at the time of the impugned action — However, this rationale doesn’t apply to offenses under section 2(1)(d), as a civilian would not have been subject to the Pakistan Army Act, 1954 when the offense was committed — The civilian becomes subject to the Pakistan Army Act, 1954 only later when charged, and it would be inappropriate to interpret section 59(4) as covering and legitimizing acts done prior to the charging for the offense, especially if those acts were initially unlawful. [2023 SCLR 31 = 2023 SCMR 1732]

—  Trial of civilians by courts martial: violative of fundamental rights despite proclamation of emergency — Scope — Even when the Constitution is operating in the emergency mode, i.e., under a Proclamation of Emergency, and even if that Proclamation is “bolstered” by an Order under Article 233(2), sections 2(1)(d) and 59(4) of the Pakistan Army Act, 1952 would be, and remain, ultra vires the Constitution, on account of the continued protection provided by Article 8(5). [2023 SCLR 31 = 2023 SCMR 1732]