By Staff Reporter
ISLAMABAD: The Lahore High Court Bar Association on Thursday petitioned Pakistan’s newly established Federal Constitutional Court to return a series of pending appeals challenging the military trials of civilians to the Supreme Court, arguing that the transfer of jurisdiction under a recent constitutional amendment was unlawful and undermined the judiciary’s independence.
The application, filed under a procedural rule temporarily adopted by the Federal Constitutional Court, contends that both the amendment and the shift of cases lack legal authority, potentially allowing Parliament to insulate its actions from judicial review. The move comes amid ongoing legal battles over the validity of trying civilians in military courts, a contentious issue stemming from violence following the arrest of former Prime Minister Imran Khan in May 2023. Those events led to attacks on military installations, prompting the government to pursue trials under the Pakistan Army Act.
On June 13, the Lahore High Court Bar Association and the Lahore Bar Association had filed intra-court appeals before the Supreme Court, seeking to set aside a May 7, 2025, judgment that upheld such trials. Those appeals were lodged through senior counsel Hamid Khan. Similar appeals were also submitted by Jawwad S. Khawaja, a former chief justice of Pakistan, and Barrister Aitzaz Ahsan, a prominent lawyer. They argued that if the May 7 verdict was not overturned, it would serve as a constant reminder of the judiciary ceding its space to the executive by accepting that the latter could act as judges to try civilians in criminal cases.
The May 7 ruling, issued by a five-judge constitutional bench of the Supreme Court, restored key provisions of the Pakistan Army Act allowing for the trial of civilians in military courts. The decision, reached by a 5-to-2 majority, overturned an earlier Oct. 23, 2023, judgment by a different five-judge bench that had declared such trials illegal and unconstitutional in cases related to the May 9, 2023, attacks.
Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan dissented from the majority verdict. While their dissenting opinions have been released, the detailed reasoning from the majority has yet to be issued. Thursday’s application, moved under Order 35, Rule 6 of the Supreme Court Rules, 2025, which the Federal Constitutional Court has adopted until it frames its own, pleaded that the pending appeals should be returned to their original forum, the Supreme Court, as both the purported transfer and the 27th Constitutional Amendment itself were without lawful authority, unconstitutional, and non-est.
The plea asserted that the 27th Amendment violated the salient and essential features of the Constitution, which defines the powers of the legislature, the executive and the judiciary. “While parliament possesses the power to amend the Constitution, it does not function as a constituent assembly and is subject to both express and implied limitations,” the application stated.
It cited recent Supreme Court jurisprudence, including an authoritative 17-member judgment in the Rawalpindi District Bar Association case, which affirmed that Parliament could not, through any amendment, alter or abrogate the salient or essential features of the Constitution, including the independence of the judiciary. The application argued that both the 26th and 27th amendments impermissibly encroached upon judicial independence and restructured the constitutional architecture in a manner inconsistent with these unamendable features. Therefore, they constituted an invalid exercise of amendatory power. It further contended that a constitutional amendment which undermined judicial independence while simultaneously divesting pre-existing constitutional courts of jurisdiction to examine its validity violated fundamental constitutional principles.
“If permitted, parliament can abolish or replace the forum for constitutional adjudication at will, thereby insulating unconstitutional amendments from judicial scrutiny,” the plea warned. The filing also drew a distinction between “jurisdiction” and “judicial power,” noting that the Supreme Court had consistently done so in prior rulings. “Even where parliament modifies jurisdiction, judicial power, i.e. the authority to determine whether jurisdiction exists, remains inherent in the superior judiciary,” it read.
“Accordingly, notwithstanding the 27th Amendment, it lies within the judicial power of the SC to determine whether it has been validly divested of jurisdiction. The subject appeal must therefore be restored to the SC for that purpose.” The application maintained that the Federal Constitutional Court could not adjudicate upon its own validity, since it was a creation solely of the 27th Amendment.
“It is therefore legally precluded from pronouncing upon the validity of the amendment, as such adjudication would determine the legality of its own existence,” it added. “This principle is affirmed in the Sabir Shah case and earlier jurisprudence, which hold that a forum cannot declare unconstitutional the very instrument that constitutes it.”
Additionally, the plea highlighted that the pending appeals did not fall within Articles 175E or 175F of the Constitution, as they were filed under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023. “The 27th Amendment neither amends that statute nor addresses statutory appeals filed thereunder,” it stated. “Article 175F(2) applies only to proceedings ‘falling under this Article’. Since the present appeal was not instituted under Articles 175E or 175F, its transfer to the FCC is without legal effect.”
The case underscores broader tensions in Pakistan over the separation of powers, particularly following the establishment of the Federal Constitutional Court through the 27th Amendment, which has shifted certain constitutional matters away from the Supreme Court. Legal experts have debated whether this reconfiguration strengthens or erodes judicial oversight in a country with a history of military influence in governance.
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