• Justice Aminuddin Khan issues detailed reasoning, says Oct 23 order by five judges more akin to ‘legislation than interpretation’
• Civilians’ trials in military courts ‘long understood as valid and operative’, says Justice Mazhar
ISLAMABAD: Justice Aminuddin Khan has said that though the procedural framework under the Pakistan Army Act (PAA) 1952 includes due process protections, the absence of an independent right of appeal to a civilian court has rendered its application to civilians constitutionally incomplete.
He made these remarks in a 68-page judgement to justify the May 7 short order on a set of 38 intra-court appeals, which challenged the Oct 23, 2023, order[1] on military trials of the civilians. Justice Khan explained that this deficiency required legislative intervention, urging parliament to do the needful in 45 days.
According to Justice Khan, the Constitutional Bench had referred the matter to parliament for the enactment of appropriate amendments, with the expectation that such institutional deference would be accorded due respect. He, however, again sought necessary amendments or suitable legislation within a period of 45 days to provide right of appeal in the high courts against convictions rendered by court martial or military courts under sub-clauses (i) and (ii) of clause (d) of subsection (1) of section 2, read with subsection (4) of Section 59.
Justice Khan observed that a fair trial demanded that the forum should be fair, impartial, and governed by transparent rules. The PAA, as currently framed and applied in the present context, meets this constitutional requirement, Justice Khan said, adding it was held that the conduct of trials under PAA, where exercised within the statutory limits and supported by procedural safeguards, did not violate fair trial standards.
On May 7, a seven-judge Constitutional Bench restored by a majority of 5-2 key provisions of the Pakistan Army Act[2] under which civilians were convicted for their involvement in the May 9, 2023, arson attacks[3] on military installations. The short order had also set aside the Oct 23 judgement, restoring Section 2(1)(d)(i) and (ii) and Section 59 (4) of the PAA. These provisions were struck down by a majority of four to one by a five-judge bench in October 2023.
‘Reading down’ approach
The interpretive technique of reading down, as employed in the Oct 23 judgement, was inapposite, Justice Khan said, adding that the doctrine of reading down was a tool of judicial restraint designed to preserve the constitutionality of statutes by construing them narrowly in case of ambiguity. It cannot be deployed to insert qualifications or restrictions into clear constitutional provisions, he observed.
The Oct 23 order purported to use reading down to override the unambiguous text of Article 8(3)(a), effectively substituting judicial preference for constitutional command, Justice Khan emphasised, adding this approach crossed the threshold of legitimate interpretation and entered the domain of constitutional amendment. The judicial function is to interpret, not to legislate, he stressed.
Article 8(3)(a) is a self-contained constitutional provision. It categorically exempts laws enacted for the Armed Forces, for purposes of discipline and discharge of duties, from the operation of fundamental rights, Justice Khan said, calling it a deliberate legislative choice by the framers.
The introduction of Article 8(5) as a qualifying provision in this context is doctrinally and textually unsound. Article 8(5) deals with the suspension of rights under emergency powers and does not, and cannot, override the permanent structural exclusion under Article 8(3)(a), he added.
Article 8(3)(a) exempts laws relating to the armed forces from the purview of fundamental rights, explicitly recognising a parallel regime for military discipline.
Article 245 further empowers the armed forces to act in defence of Pakistan and in aid of civil authority, indicating that the Constitution contemplates a domain of operations and discipline governed by military command and distinct legal processes, Justice Khan said
Justice Khan said the adjudicatory authority exercised by military courts over civilians does not infringe the constitutional doctrine of separation of powers. Article 175(3) is not offended by the existence or operation of military courts within their legal remit.
Additional note
Meanwhile, Justice Muhammad Ali Mazhar, though concurring, said in his additional note that the trial of civilians only for specific offences as provided under Section 2 (d) (i) and (ii) was not a new phenomenon.
It is a ground reality that the provisions of PAA 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.
The fact that these provisions remained unchallenged or were not declared ultra vires at an earlier stage suggests that they were long understood as valid and operative within the constitutional scheme, Justice Mazhar explained.
It was only in the aftermath of the events of May 9, 2023, when prosecutions of civilians under PAA acquired public and political prominence that this question was brought into sharp focus. Against this backdrop, it is necessary to ask whether it is the law itself that is infirm, or whether the sudden urgency of the present moment has led to a judicial reappraisal that stands at odds with decades of settled acceptance, he argued.
Published in Dawn, September 23rd, 2025