Justice Ayesha Malik’s Well-reasoned Opinion in the Military Courts Case

Justice Ayesha Malik’s Well-reasoned Opinion in the Military Courts Case:

Justice Ayesha Malik agress with majority judgment in the Military Courts case but she has written her  well-reasoned and well-grounded opinion as well. Her opinion is different from others as she has very aptly distinguished the F.B Ali and other cases which the Federal Government  relied upon to support its stance that the trials of the civilians by the military courts is legal and constitutional and F.B Ali case, which was decided by a five-member bench,  is binding on the current bench being co-equal in strength to F.B. Ali case. She has mainly focused in the opinion on the right to fair trial and due process of law under Article 10-A of the Constitution.

She holds in her opinion that the F.B Ali case is distinguishable on three grounds. Firstly, the matter was pertaining to retired army officers who remained subject to the Army Act for time they were in service. No civilian or right of a civilian was involved in that case. The instant case, on the other hand, is solely pertaining to civilians who are not otherwise subject to the Army Act. Secondly, Article 10-A, which guarantees fair trial and due process of law to the citizens,  of the present Constitution was not in existence at the time of the F.B. Ali case. The dispute in that case was not gauged on the touchstone of fair trial and due process of law. Thirdly, the the F.B Ali case did not consider Article 6(3) of the Constitution of 1962 (the equivalent to Article 8(3) of the present Constitution as the Court held that there is no question of the infringement of the fundamental rights involved in the case in hand. She distinguished the F.B Ali case on these grounds and held that the same is not binding on the bench.

She also highlighted another  two significant points in the case in hand. She said if the argument of the Attorney General for Pakistan that any person can be deprived of the fundamental rights because he has otherwise been subject the Army Act is not tenable as it implies that fundamental rights can be taken away through an ordinary legislation which, if accepted, would render Article 8 (1) (2) and (5) redundant as sub-clause 5 of the Article 8 requires a constitutional provision to take away a fundamental right. It cannot be done through an ordinary legislation. The second important point she has highlighted is that the if a request is made under Section 549 of the Code of Criminal Procedure, 1898 (Cr.P.C.) to an ordinary criminal court to handover an individual to a military court, the law requires that the order of such transfer must a reasoned and grounded one. It must state the reasons why transfer of an accused is legally correct from an ordinary criminal court to a military court, as transfer of an accused to a military courts means the loss of right to due process of law, fair trial and right to an independent forum.

Consequently she declares the trials of civilians by military courts allegedly involved in the 9th and 10th May incidents void and illegal and  clause (d) of subsection (1) of Section 2 of the Army Act [in both of its sub clauses (i) & (ii)] and subsection (4) of Section 59 of the Army Act ultraI vires the Constitution and of no legal effect.

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