Jawwad S. Khawaja & Others v. Federation of Pakistan & Others

Case Title: Jawwad S. Khawaja & Others v. Federation of Pakistan & Others

Constitution Petition Nos: 24, 25, 26, 27 & 28 and 30 & 35 of 2023
Citation: PLD 2024 Supreme Court 337 , 2023 SCMR 1732,
Court: Supreme Court of Pakistan
Bench: Five member constitutional Bench 

Date of Judgment: 9 January 2024
Parties Involved:

Facts of the Case: 

In early May 2023, the political atmosphere of Pakistan was charged and tense. On 9 and 10 of May 2023, Ordinary demonstrated protests escalated into violent attack on military and defense installations. Residence of senior military officers was set ablaze, monuments of martyrs were desecrated and General headquarters (GHQ) was mobbed.
The Federal Government reacted immediately to the scale of violence. It decided that those accused of attacking defense installations would not to be treated in ordinary criminal courts, Instead, they would be tried under the Pakistan Army Act, 1952, specifically section 2(1)(d) and section 59. On the application of military authorities under section 549 of Cr.P.C  to anti-Terrorism Courts (ATCs) and  103 civilian accused persons were handed over to the Army custody for trial by Court martial  by (ATCs) without any scrutiny. Families of accused and civil society were alarmed. Group of constitution Petitions (C.P) from CP:Nos. 24–30 of 2023 led by (Jawwad S. Khawaja, former CJP) were filed under Article 184(3) of Constitution od Pakistan (COP), challenging the act of federal government arguing that trying civilians under Pakistan Army Act (PAA) 1952 in military courts violate fundamental rights as Right to fair trial by a competent, independent and impartial judiciary principle of the independence and due process. A five member Constitutional Bench was established for the issue raised. 

Issues Raised:

Following legal issues were raised by petitioners while challenging the act of government and procedure followed before the honorable bench:

• What is the constitutionality of conducting civilian trial under Pakistan Army Act (1952) by Court martial? 
• Whether sections 2(1)(d)(i) & 2(1)(d) (ii) and section 59(4) of the (PAA) were ultra vires to the Constitution, particularly regards to rights not be suspended under articles 8(5), Security of a person and no deprivation to life under article 9 and Right to fair trial under article 10(A).
•  Whether anti-Terrorism Courts (ATCs) had jurisdiction to transfer accused persons to military custody under section 549 Cr.P.C.
•  What is the Scope of Article 8(3)(a) of COP, can it be extended to cover civilians on the ground of “proper discharge of duties” by Armed Forces?
• Effect of Emergency and Article 233(2)? Do fundamental rights remain protected under Article 8(5) even in a state of emergency?

Arguments:

The petitioners, led by Jawwad S. Khawaja, contended that the trial of civilians by military courts was unconstitutionally and fundamentally void. The first and strongest point was anchored in Article 10A of the Constitution, which guarantees the right to a fair trial and due process. Military courts, by their nature lack independence, transparency and open court, and subjecting civilians to such tribunals will ripped them of the safeguards available in ordinary criminal courts. They further argued that Article 8(5) of the Constitution provides a protective shield, preventing any law from denying fundamental rights to persons other than members of the Armed Forces. Sections 2(1)(d)(I) & (II) and 59(4) of the PAA, which attempted to bring civilians under the umbrella of military jurisdiction, were therefore in direct conflict with this constitutional safeguard. Another important contention was the procedural followed by ATCs. The transfer of 103 accused persons by the Anti-Terrorism Courts to military custody under section 549 of the Cr.P.C was argued to be entirely unlawful. The ATCs had no jurisdiction for offences such as mutiny under section 131 (PPC). Since these offences did not fall within the jurisdiction of ATCs in the first place but the ordinary criminal courts. Thus, both the application by the Army authorities and the orders of the ATCs suffered from lack of jurisdiction.
The petitioners relied on precedent Liaquat Hussain vs Federation of Pakistan, In which Supreme Court struck down military courts constituted for the trial of civilians, emphasizing the supremacy of constitutional guarantees and civil jurisdiction.

On the other side, The Attorney General (Respondent) argued that the attacks of 9th and 10th May 2023 were not ordinary crimes. They were direct assaults on the Armed Forces, and their installations, which form the backbone of national defense. Therefore, the Government had both the duty to prosecute such offences under the Pakistan Army Act, 1952.The Federation of Pakistan (FOP) relied on Article 8(3)(a) of the Constitution, which permits certain exceptions to fundamental rights in relation to laws that ensure the proper discharge of duties by the Armed Forces which allows for military jurisdiction to extend to civilians when their actions.  FOP relied on historical precedent. They cited Brigadier (Rtd.) F.B. Ali vs State in which Supreme Court had upheld military jurisdiction in certain instances involving civilians. The respondents contended, the gravity of the offence’s attacks on GHQ, senior officer’s residences, and martyr monuments, the Court should not shy away from recognizing the extraordinary circumstances of May 2023 and uphold the Government’s decision. 

Judgment:

The decision was made into favour of petitioners by 4-1. Where (Justice Munib Akhtar , Ijaz ul Ahsan, Mazahar Naqvi, and Ayesha Malik ) hold the majority decision declared  Section 2(1)(d) (I) & (II) and Section 59(4) of the Pakistan Army Act, 1952 as unconstitutional (ultra vires) and hold that right to fair trial comes first. Even if an Emergency under Article 233 is declared, most fundamental rights remain safe. Further upheld ATCs had no power to grant such requests for offences like mutiny or offences under Official Secrets Act 1923.
Justice Yahya Afridi did not fully agree with majority. He agreed that Sections 2(1)(d) and 59(4) of the Army Act were unconstitutional but he dissented on the scope and extent of how the majority applied this ruling. He remained cautious, suggesting that the Court should not close every possible door for military jurisdiction without considering exceptional circumstances

Legal Reasoning: 

The majority judgment, led by Justice Munib Akhtar and supported by Justices Ahsan, Naqvi, and Ayesha Malik, held that fundamental rights are supreme. The court heavily relied on Article 10A, which guarantees the right to a fair trial. It was emphasized that while court martials may be suitable for soldiers, they are not appropriate for civilians due to the lack of guarantees of independence and fairness during the trial. The judgment further noted that Article 8(5) of the Constitution explicitly states that fundamental rights cannot be suspended, and it protects civilians from laws that seek to undermine these rights. The sections 2(1)(d)(I) & (II) and 59(4) of the Pakistan Army Act (PAA) were deemed unconstitutional as they attempted to subject civilians to military law, directly clashing with Article 8(5). 

Moreover, the court observed that even during a state of emergency declared under Article 233, certain fundamental rights, including the right to a fair trial. cannot be suspended. The government cannot justify military trials of civilians by citing extraordinary circumstances. The judgment underscored the importance of upholding fundamental rights and ensuring that civilians are tried in accordance with the principles of due process and fair trial.

Justice Yahya Afridi dissented from the majority opinion, citing the case of Brig. (Rtd) F.B. Ali v. State. In this case, a five-member bench of the Supreme Court had previously adjudicated on the same sections (2(d) (I)&(II). and declared them intra vires to the Constitution, finding no violation of Articles 9, 10A, and 25. The findings on fair trial under the Army Act in F.B. Ali’s case were later referred to and relied upon in several subsequent cases before the Supreme Court, and the law laid down therein was never declared to be no longer good law or to have lost its efficacy.
Justice Afridi emphasized that F.B. Ali’s case was decided by a co-equal bench of five members, and it is a well-settled principle that an earlier decision of a bench of the Supreme Court is binding not only on smaller benches but also on benches of co-equal strength. Therefore, Justice Afridi’s dissenting opinion relied.

Ratio Decidendi (Binding Principle): 

Civilians cannot be subjected to trial under military laws such as the Pakistan Army Act, 1952 (S.2(1)(d) & S.59(4)), as these provisions are unconstitutional for violating Articles 8(5) and 10A of COP. Civilians accused of offences must be tried in ordinary criminal courts of competent jurisdiction.

Obiter Dicta (Remarks):

The court stared that Similar provisions of Pakistan Army Act presents in the Air Force Act, and Navy Ordinance, are also unconstitutional. Even in a state of emergency, fundamental rights under Article 10A remain available to the civilians. The court relied on Indian case law Makhan Singh v. State of Punjab. and on constitutional commentary of Durga Das Basu.

Conclusion:

Jawwad S. Khawaja v. Federation of Pakistan is landmark judgment reaffirming constitutional supremacy & fundamental rights, along aligning with international principles, by emphasizing the importance of an independent judiciary and fair trial for civilians. The judgment affirms that every citizen is entitled to full protection of fundamental rights and a trial before an independent and impartial court. The ruling helped to restore public trust in the constitution courts, signaling that the highest court is willing to act as a strong wall against executive and powerful military of Pakistan. It also served as a strong deterrent for future contemplating the use of military courts for civilians. It strengthened right to a fair trial and due process. 

Judgement has aligned with other common law jurisdictions especially UK and USA. In US case of Ex parte Milligan (1866) firmly established that civilians cannot be tried by court martial when civilian courts are functioning.  UK has maintained that Civilians are subject to ordinary criminal courts.

UN Human Rights Committee in its general comment held Trial of civilians by military courts should be exceptional and occur only under conditions that genuinely afford full due process guarantees. International Covenant on Civil and Political Rights (ICCPR) also Upheld the right to a fair trial by a competent, independent, and impartial tribunal established by law. 

The Supreme Court’s judgment stands as a robust defense of constitutionalism and civilian supremacy. It clearly demarcated the boundary between civilian and military sphere and the ruling put an end to a chapter in history of exceptionalism where civilian justice was often negotiable. This ruling firmly establishes that civilians will be tried under the ordinary judicial system, upholding the principles of due process and fair trial.