Practice Relating to Rule 100. Fair Trial Guarantees
Section B. Trial by an independent, impartial and regularly constituted court
In the Liaqat Hussain case in 1999, the Supreme Court of Pakistan stated:
33. The learned counsel for the petitioners have vehemently contended that since the Armed Forces by virtue of clause (1) of Article 243 of the Constitution are under the control and command of the Federal Government, and as under the Army Act the power to dismiss, remove and reduce in rank vests in the Executive, the personnel of the Armed Forces, who are to man the above four types of Courts are under the direct administrative control of the Executive and that the above Courts and personnel do not qualify for holding a judicial office in terms of the law enunciated by this Court in the case of Mehram Ali [Mehram Ali and others v. Federation of Pakistan (PLD 1998 SC 1445)]. They have invited our attention to Chapters III and IV of the Army Act. The former deals with the termination of service and the latter provides for summary reduction and punishment otherwise than by sentence of Court Martial. They have particularly invited our attention to section 16 contained in Chapter III of the Army Act, which provides that the Federal Government may dismiss or remove from service any person subject to this Act. There is no doubt that the cumulative effect of the above Constitutional provision, namely, Article 243 and of the Constitution is that the personnel of Armed Forces are under the final administrative control of the Federal Government.
It may further be observed that section 3 of the impugned Ordinance [Ordinance XII of 1998] provides that as directed by the Federal Government, the Chiefs of the Staff of the Armed Forces or an officer not below the rank of Brigadier or equivalent rank in Pakistan Navy, or Pakistan Air Force authorised by the concerned Chief of the Armed Forces in this behalf, may convene as many Courts as may be necessary to try offences triable under the Ordinance including the convening of Courts of appeals to hear appeals arising out of the decisions made and sentences passed by the Courts so convened. The above provision also indicates that the Federal Government has full control as to the convening of the Courts under the Army Act for the trial of the offences under the impugned Ordinance, though the personnel to man such Courts are to be nominated by the Army Authorities. The impugned Ordinance does not envisage the establishment of permanent Military Courts but it provides for the trial of civilians for the offences mentioned in the Ordinance by any of the four types of Courts mentioned in section 80 of the Army Act to be convened for each case comprising different Army personnel. In pith and substance the above types of Courts cannot be equated with the normal Courts envisaged under the Constitution as enunciated by this Court in the case of Mehram Ali v. Federation of Pakistan (supra). It may be pointed out that, this Court … has held that the right to have access to justice through independent Courts is a Fundamental Right and, therefore, any law which makes a civilian triable for a civil offence, which has no nexus with the Armed Forces or defence of the country, by a forum which does not qualify as a Court in terms of the law enunciated particularly in Mehram Ali’s case (supra) will be violative of Articles 9, 25, 175 and 203 of the Constitution.
41. It was further contended by the learned Attorney-General that no one has any vested right in a particular forum for trial specially when procedure provided under the Army Act for holding trial is not violative of any principle of fair trial as held by this Court inter alia in the case of Brig. (Retd.) F.B. Ali (supra). The above contention is also devoid of any force. It may again be observed that this Court has held … that the right to have access to justice through the forums as envisaged by the Constitution is a Fundamental Right. The above view was reiterated by this Court in the case of Al-Jehad Trust v. Federation of Pakistan and others (PLD 1996 SC 324) … If the forum provided under the impugned Ordinance would have been within the parameters laid down by this Court in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra), the above contention would have force, but since I have held that the Military Courts do not fall within the compass of the law enunciated in the above case, the trial by such Military Courts of civilians for civil offences which have no nexus with the Armed Forces or defence of Pakistan would be violative of the Constitution.
43. As regards the violation of Article 25 of the Constitution, it may be observed that the contention of the learned counsel for the petitioners was that the impugned Ordinance contravenes the above Article, inasmuch as it gives discretion to the Federal Government to pick and choose cases which may be referred to the Military Courts. On the other hand, the learned Attorney-General has urged that the offences triable under the impugned Ordinance are those which are mentioned in section 6 and the Schedule to the impugned Ordinance and that this Court has already held in more than one case that different laws can be enacted for different sexes, persons of different age group, persons having different financial standards and persons accused of heinous crimes. No doubt, that this Court … has held so, which has been reiterated in the case of Mehram Ali and others v. Federation of Pakistan and others (PLD 1998 SC 1445) (supra). However, in the present case the basic question is as to the vires of the impugned Ordinance on the ground of providing parallel judicial system, but at the same time the impugned Ordinance is also violative of Article 25 of the Constitution, inasmuch as it gives discretion to the Federal Government under section 3 thereof to pick and choose cases for referring to the Military Courts as has been held by this Court in the case of Brig. (Retd.) F.B. Ali.
In his separate opinion, Judge Irshad Hasan Khan concurred:
Clearly, an accused charged of offences/an unconvicted person is presumed to be innocent and has a vested right to a fair trial before a Court or Tribunal validly established under Article 175(1) of the Constitution. Even if Military Courts are treated as Special Courts, they cannot be declared valid as in the impugned Ordinance, no provision of appeal has been provided against the orders of the Military Courts before the Supreme Court nor their functioning and supervision have been made subordinate to it. Thus visualized, they do not fulfil the criteria of a “Court” exercising judicial functions within the purview of the guidelines provided in the case of Mehram Ali. The establishment of Military Courts is, therefore, unwarranted by any Constitutional provision. Viewed from this angle as well, the impugned legislation does not fall within the category of reasonable classification. Thus visualised, notwithstanding the bona fides and the noble object of the Federal Government to suppress/curb terrorism and punish the persons/accused mentioned in the Ordinance, the same cannot be called intra vires of the Constitution.
53. Viewed from whatever angle, the impugned Ordinance is ultra vires of the Constitution in so far as it takes away the adjudicatory powers of the Judiciary.
In his separate opinion, Judge Raja Afrasiab Khan concurred:
In my considered view, the establishment of Military Courts for trial of civilians amounts to [a] parallel system for all intents and purposes which is wholly contrary to the known existing judicial system having been set up under the Constitution and the law.