—  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: 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]

— Conditions and limitations in voiding laws affecting fundamental rights — Scope — For Article 8(3)(a) to apply two conditions must be met — Firstly, it applies to a law made in respect of three categories of State employees: (i) members of the Armed Forces; (ii) the police; and (iii) any other force that is charged with the maintenance of public order — Secondly, even in relation to such categories, the purpose of the law must be to either (x) ensure the proper discharge of their duties, or (y) maintain discipline among them. [2023 SCLR 31 = 2023 SCMR 1732]

— Conditions and limitations in voiding laws affecting fundamental rights — Scope — Once it is shown that a law comes within the ambit of Article 8(3)(a) the denial of and derogation from fundamental rights, in their totality, is immediate and absolute — The provision is not simply an “exception”; it is in fact exclusionary — It follows, given the drastic consequences that flow from it, Article 8(3)(a) must be given a narrow and restricted meaning and application — This conclusion is firmly based on settled principles of constitutional interpretation. [2023 SCLR 31 = 2023 SCMR 1732]

— Comparative analysis of clauses (1), (2), and (5) in safeguarding fundamental rights — Scope — Clauses (1) and (2) of Article 8 address/attack violations of fundamental rights by voiding specific laws, while clause (5) of Article 8 directly protects fundamental rights themselves — Clauses (1) and (2) act when fundamental rights are violated or indirectly threatened, whereas clause (5) is invoked when fundamental rights are directly under attack — Clause (5) ensures that fundamental rights persist without any disruption in time or space — Clause (5) that guards the clauses (1) and (2) — Clause (5) prevents the suspension of fundamental rights, even before a breach occurs, by anticipating situations where the purpose or effect of an action would displace these rights. [2023 SCLR 31 = 2023 SCMR 1732]

— Laws inconsistent with or in derogation of Fundamental Rights to be void — Procedural framework for assessing claims of denial of fundamental rights — Scope — If a claim of denial or derogation from fundamental rights is brought forward, it may warrant a two-step consideration — In the first instance, the consideration of whether there is a breach of clause (5) of Article 8 is to be undertaken by the court — If the answer is in the affirmative, that may well be deemed decisive and conclusive in and of itself — If the answer is in the negative, then the matter is to be moved to the second step, i.e., the consideration of whether there is a breach of one or more particular and identified fundamental rights. [2023 SCLR 31 = 2023 SCMR 1732]

— Laws inconsistent with or in derogation of Fundamental Rights to be void — Fundamental rights in perpetuity: suspended only by explicit provisions — Scope — Article 8(5) explicitly states that fundamental rights cannot be suspended except as expressly provided in the Constitution — In other words, in respect of the application of this provision, there can be no implication, no matter how “necessary” it may be claimed to be — All that counts, and all that can be taken into consideration, is what the Constitution expressly stipulates — Nothing else can be accepted. [2023 SCLR 31 = 2023 SCMR 1732]

— Fundamental rights — Scope — Fundamental Rights as guaranteed under the Constitution safeguard citizens or persons, as the case may be, from government action such that no law, custom or usage can be made in derogation of or in violation of any fundamental right — In the event that a law, custom or usage is violative of a fundamental right a person has the right to challenge the same before a court of competent jurisdiction and seek a declaration that the said law is void — This in turn means that fundamental rights guaranteed by the Constitution cannot be taken away by ordinary law — That would in fact defeat the very purpose of a constitutional guarantee. Furthermore, in terms of Article 8(5) of the Constitution, fundamental rights cannot be suspended save as provided by the Constitution — The rigors of Article 8(5) of the Constitution are so hard-hitting that it is only in terms of an express constitutional command that fundamental rights can be suspended which means that fundamental rights are not mere accessories rather they are there for the protection of the people, worn like an armour by the people, being an intrinsic part of their being that remains impervious regardless of the circumstances and challenges. [2023 SCLR 31 = 2023 SCMR 1732]

— Laws inconsistent with or in derogation of Fundamental Rights to be void — Scope — The military justice system is a distinct system that applies to members of armed forces to preserve discipline and good order — Hence, they are subjected to a different set of laws, rules and procedures which ensures internal discipline and operational effectiveness — The purpose of a separate military justice system is to allow the armed forces to deal with matters pertaining directly to the discipline, efficiency and morale of the military effectively, swiftly and severely so as to ensure control over military personnel — Military jurisdiction covers members of the armed forces and includes matters related to their service which ensures the proper discharge of their duties and the maintenance of discipline amongst them — This is precisely why the Constitution brings such matters under the exception to Article 8(1)(2) in the form of Article 8(3)(a) of the Constitution which excludes the operation of fundamental rights when it relates to the members of the armed forces who are charged with the maintenance of public order in the discharge of their duties and the maintenance of discipline amongst them. [2023 SCLR 31 = 2023 SCMR 1732]

— Laws inconsistent with or in derogation of Fundamental Rights to be void — Scope — Article 8(3)(a) of the Constitution provides that Article 8 shall not apply to any law relating to members of the armed forces or the police or such other forces, which in essence means disciplinary forces, charged with the duty of maintaining public order — The law here is one that relates to ensuring the proper discharge of their duties or maintenance of discipline amongst them — What this means is that laws which relate to members of the armed forces with respect to their discipline and the discharge of their duties shall be exempted from the protection of Article 8(1)(2) of the Constitution, meaning that members of the armed forces when faced with issues related to the discharge of their duties or the maintenance of their discipline cannot seek the protection of fundamental rights as given in the Constitution — Importantly, Article 8(3)(a) of the Constitution is applicable when two conditions are met, first it must apply to members of the armed forces and second it must relate to the discharge of their duty and maintenance of their discipline. [2023 SCLR 31 = 2023 SCMR 1732]

— Laws inconsistent with or in derogation of Fundamental Rights to be void — Scope — The interpretation of Article 8 of the Constitution is that there can be no law inconsistent with or in derogation of any fundamental right contained in Part II Chapter I of the Constitution and that the State cannot make any law which takes away or abridges fundamental rights — Where such a law is made, it is in contravention to Article 8, hence, void — Further Article 8(5) provides that the rights conferred by this chapter shall not suspended except as expressly provided by the Constitution meaning thereby that fundamental rights cannot be infringed upon nor can any law take away any fundamental right guaranteed to a person or a citizen except if specifically provided for by the Constitution — In this context when seen Article 8(3)(a) of the Constitution applies to laws relating to the members of the armed forces specifically with reference to matters pertaining to the proper discharge of their duties and the maintenance discipline amongst them — Laws relating to the armed forces includes the Army Act to the extent that it relates to persons subject to the Army Act because it is with reference to such persons that discharge of duty and discipline has to be maintained — Furthermore, when such persons are subjected to military courts, they do not enjoy the protection of any fundamental right as contemplated by Article 8(1)(2) and (5) of the Constitution — It does not bring within its scope civilians who are persons not otherwise subject to the Army Act because they are not responsible for the maintenance of public order and the question of discharge of duties and maintenance of discipline does not arise — Article 8(3)(a) of the Constitution specifically applies to members of the Armed Forces and laws related to them. [2023 SCLR 31 = 2023 SCMR 1732]