May, 2025 judgment explicitly directed govt and Parliament to address this deficiency
ISLAMABAD:
A year after a landmark ruling, the superior judiciary has yet to see implementation of its own directive requiring the federal government to legislate an independent right of appeal for civilians convicted by military courts, leaving a key safeguard of due process in limbo.
In its majority judgment authored by Justice Aminuddin Khan on May 7, 2025, the Supreme Court upheld the military trials of more than 100 PTI activists involved in the May 9, 2023, attacks on military installations.
However, the same ruling acknowledged a critical legal gap, holding that while the Pakistan Army Act provides procedural due process in form, it lacks the structural guarantees necessary for a fair appellate forum for civilians.
The judgment explicitly directed the government and Parliament to address this deficiency. It stated that the legislative framework must be supplemented to provide civilians convicted under military law with an independent right of appeal in the high courts.
“We, in unison, sensitise the need of legislative changes, which will also be compliant to the requirements laid down under the International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving the constitutional and societal norms in the existing legal framework.”
The May 7 order, signed by Justice Aminuddin Khan, Justice Muhammad Ali Mazahar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Shahid Bilal Hassan, states that the matter has been referred to the government and parliament to consider and make necessary amendments or legislation in the Pakistan Army Act, 1952, and its allied rules within a period of 45 days.
The amendments are aimed at providing an independent right of appeal in the High Court against convictions awarded by court martial or military courts to persons under sub-clauses (i) and (ii) of clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with subsection (4) of Section 59 of the same Act.
Two judges – Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan – dissented, holding that military trials of civilians were unconstitutional.
Despite the time-bound directive, the federal government neither challenged the portion of the judgment mandating appellate rights nor introduced the required legislation. Initially, officials had indicated that a bill would be moved, but no progress followed. Subsequently, former chief justice Jawad S Khawaja filed a contempt petition against Prime Minister Shehbaz Sharif over the non-implementation of the court’s order.
Parallel legal challenges also emerged, with some petitioners filing review petitions against the judgment’s endorsement of military trials. Following the 27th Amendment, the matter was transferred to the Federal Constitutional Court (FCC), headed by Justice Aminuddin Khan – the author of the original majority ruling.
However, since its transfer, the case has not been taken up by the FCC. Meanwhile, those convicted by military courts continue to be deprived of an independent right of appeal.
Legal experts have expressed sharp concern over the continuing inaction.
Advocate Faisal Siddiqi said that the limited relief of an appellate right granted by the “26th Amendment judiciary” had effectively been nullified by subsequent developments. To rephrase the great German philosopher Nietzsche, “judiciary is dead, long live the new judiciary.”
Islamabad-based lawyer Waqas Ahmed noted that the SC had permitted military trials of civilians on the condition that an independent right of appeal would be provided, a condition that remains unmet. He termed this a serious concern for fairness and due process, adding that the FCC, now vested with jurisdiction, must ensure enforcement of the judgment.
Barrister Asad Rahim Khan argued that even the limited appellate safeguard was insufficient from the outset.
“Even as far as sops went, however, this one too was withheld. After all, the decision’s main consequence was not to provide an additional floor of appeal. It was to validate military tribunals of civilians outside a declared state of exception, and outside a constitutional amendment – the first time in our history,” he noted.
He further stated that implementation of even these limited safeguards had been further complicated by the creation of the FCC, which he described as an aberration within a common law system that has weakened binding precedent.
Barrister Sameer Khosa said the judgment of the Constitutional Bench of the Supreme Court required the federal government to provide an appeal to the convicts, but the government has not even pretended to offer one.
