SC says Army Act not unconstitutional but incomplete without civilian appeal

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ISLAMABAD: The Supreme Court has ruled that the Pakistan Army Act, 1952, although not unconstitutional, is needed to reform the legislature to trial in military courts with the independent right to appeal before the civil courts.

In May 2025, a constitutional bench of the SC gave a chance to prosecute civilians in military courts. In its short order, the Apex Court decided with a 5-2 majority. Justice Jamal Khan Mandokhel and Naeem Akhtar Afghan disagreed.

The case is related to hearing military cases and consequently convicting civilians for their role in attacks on military installations, which is on May 9, 2023, during the riots on the army’s installations during the riots that led to the arrest of Pakistan Tehreek-A-ASA (PTI) founder Umran Khan.

In its detailed order issued on Monday, the Apex Court noted that the provisions of the Pakistan Army Act 1952 are “not naturally unconstitutional”, but it was emphasized that the lack of legal right to appeal the high courts needed legislation.

The court handed over the matter to the Parliament, instructed the government and the lawmakers to enforce proper amendments to the Army Act and its affiliated rules within 45 days.

It was emphasized that in these amendments, section 2 (1) (d) (I) and (II) in these amendments, a free appellate forum for citizens convicted by the court martial or military courts, read with Section 59 (4) of the Act.

The bench further observed that such institutional respect for Parliament was necessary and expressed the hope that the legislature would be respected by its guidance while protecting civilian rights in the framework of military justice.

Referring to international law, including Article 14 of the International Testament of the Civil and Political Rights (ICCPR), the court said that the military tribunals are not naturally unconstitutional, provided they provide minimal guarantees of justice, especially an independent Appellate.

The court rejected the argument that military courts violate Article 175 (3) of the Constitution, which is related to the separation of the judiciary from the executive. It states that military courts operate under a separate constitutional and legal route, limited to the jurisdiction, and do not occupy the jurisdiction of the general courts.

Recognizing that section 133 and 133-B of the Army Act provide the entry path, the court found them inadequate for ordinary citizens. He said that under international agreements like the ICCPR, in the light of Pakistan’s constitutional evolution and responsibilities, the independent legal right to appeal in the high courts is necessary.

The decision also states that during the proceedings, the Attorney General had sought time from the bench to consult the government on the introduction of an independent right to appeal for citizens trying under the Army Act. He assured the court that any recommendation for legal reforms would be respected and seriously considered.

Earlier in May, Justice Mandokil and Justice Afghan disagreed with the majority ideology, and rejected the appeals in a separate order and upheld the decision that invalidated the military cases of ordinary citizens.

On October 23, 2023, the decision, which was given by a five-member bench headed by Justice Ijazol Ahsan and Justice Maneb Akhtar, Yahya Afridi, Mazar Ali Akbar Naqvi, and Aisha Malik made extraordinary with a 4-1 majority.

Although the bench unanimously agreed that the cases of the suspects on May 9 should be heard by criminal courts, the majority decision reduced Section 2 (1) (D) (I), Section 2 (1) (D) (II), and Section 59 (4) of the Pakistan Army Act 1952.

Later, a constitutional bench formed under the 26th Amendment restored these provisions of the Army Act.

May 9 riots

On May 9, 2023, incidents refer to the riots that PTI founder Khan was arrested in a graft case from the Islamabad High Court (IHC) premises.

During the protest, the miscreants targeted civil and military installations, including the corps commander’s house in Lahore and the General Headquarters (GHQ) in Rawalpindi.

After his arrest, several PTI leaders and workers were released on bail, while many people are still behind bars.

The Prime Minister, who was ousted from power in April 2022 through the opposition’s distrust, was ousted from power since August 2023, from August 2023, since August 2023.