To begin with, reading down allows courts to save a statute without revising it. In the dispute over Pakistan’s military tribunals, the concept had the opposite effect, on both sides of the bench. The junction of military jurisdiction, civilian rights, and constitutional interpretation has long been one of the most contentious issues in Pakistani law. This tension reached a boiling point with the unusual events of coordinated strikes on various military facilities across Pakistan. In response, the military and the Federal Government invoked the Pakistan Army Act of 1952, claiming jurisdiction over 103 civilian suspects under Sections 2(1)(d)(i) and (ii) and Section 59(4), which subject non-military personnel to court martial for acts involving subversion of military allegiance or violations of the Official Secrets Act of 1923 in regard to defense installations. This executive action sparked a massive legal battle that resulted in two diametrically opposed Supreme Court decisions: Jawwad S. Khawaja v. Federation of Pakistan, which held that civilian trials before military courts violated the Constitution, and the Shuhada Forum appellate judgment, which reversed that finding. The interpretive notion of reading down is at the heart of this jurisprudential disagreement, and each bench’s use, or misuse, of this idea must be closely examined.
Reading Down versus Remedial Reinterpretation
The theory of reading down, also known as the presumption of legality or proper meaning, is a statutory interpretation canon that directs courts to adopt a construction of legislation that is consistent with the Constitution, rather than simply striking it down. It is fundamentally a theory of judicial restraint and legislative respect. Consider it a tool for addressing true interpretive ambiguity: if a statute offers two plausible interpretations, one constitutionally problematic and one not, the court must choose the latter. However, there is a significant gap between this legitimate interpretative function and what is known as remedial reinterpretation, in which courts adopt implausible or stretched readings to salvage legislation that is, in substance, constitutionally deficient. The former is a method of resolving ambiguity; the latter is a form of judicial lawmaking that substitutes the court’s constitutional preferences for the legislature’s express choices.
The Khawaja Bench: Reading Down Through Article 8(5)
Having established that, the Jawwad S. Khawaja bench deployed reading down to resolve what it identified as a fundamental tension between Article 8(3)(a) and Article 8(5) of the Constitution. Article 8(3)(a) provides that the fundamental rights provisions shall not apply to “any law relating to members of the Armed Forces… for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them.” Article 8(5) provides that fundamental rights shall not be suspended except as expressly authorized by the Constitution, most notably, during a Proclamation of Emergency under Article 232. The bench reasoned that to read Article 8(3) (a) as extending blanket immunity to the prosecution of civilians under the Army Act would, in practical effect, produce a suspension of those civilians’ fundamental rights without any of the constitutional authorizations that Article 8(5) demands. The judgment framed this difference as an active negation between the two provisions, stating:
“For it is clear that clause (3) (a) on the one hand and clause (5) on the other stand not just in contrast but in direct opposition” [1]
The judgment noted further:
Clause (3) (a) results in the immediate and absolute denial of fundamental rights in their totality. Clause (5), on the other hand, stands absolutely and robustly in denial of such denial (other than as is expressly provided). The former tugs one way, the latter in exactly the opposite direction. How is this tension to be resolved?[2]
It therefore read down the Army Act’s provisions, specifically Sections 2(1) (d) and 59(4), so as to exclude civilians from their reach, on the ground that any broader reading would irreconcilably conflict with Article 8(5). This is reading down operating exactly as the doctrine prescribes: faced with a construction of the Army Act that would be constitutionally infirm (civilian trial without the authorization Article 8(5) demands) and one that would not be (civilian exclusion), the bench chose the former: declaring the provisions invalid outright. The finding that followed, that the trials of the 103 civilian suspects were without lawful authority, was the consequence of this narrowed reading rather than a departure from it: once Sections 2(1) (d) and 59(4) were read to exclude civilians, they could no longer authorize proceedings against them.
Shuhada Forum’s Self-Defeating Critique
The Shuhada Forum appellate bench denounced this reasoning as a serious doctrinal misapplication. Its main criticism was that the Jawwad S. Khawaja bench confused two completely different constitutional provisions: Article 8(3)(a) is a permanent, categorical exclusion, a purposeful constitutional carve-out immunizing military discipline laws from fundamental rights challenge in perpetuity, while Article 8(5) governs the temporary, crisis-specific suspension of rights under emergency conditions. The appellate bench contended that filtering Article 8(3)(a) through the sieve of Article 8(5) was not reading down; it was constitutional rewriting.
This appellate critique has formal force, and it cannot be entirely dismissed. The textual separation between Article 8(3) (a) and Article 8(5) is real. A rticle 8(3)(a) does not, on its face, condition its operation on the existence of a formal emergency, and reading such a condition into it does require interpretive work that goes beyond the provision’s plain terms. To that extent, the Jawwad S. Khawaja bench’s reliance on Article 8(5) as its primary doctrinal vehicle was imprecise, and counsels like Salman Akram Raja, who argued before the appellate bench that the original judgment “could have rested more firmly on the express constitutional guarantees contained in Articles 8(1), 8(2), 8(3)(a), and Article 175(3), without resorting to broader interpretive constructs,” were right to identify this as a weakness in the judgment’s architecture.
Yet the appellate bench’s own reading of Article 8(3) (a) is no less an interpretive choice, and arguably a more consequential one. Article 8(3) (a) speaks of laws relating to “members of the Armed Forces.” To read this clause as constitutionally immunizing the prosecution of civilians under the Army Act, persons who are, by definition, not members of the Armed Forces, requires the appellate bench to extend the clause well beyond its textual boundary. This is exactly the kind of interpretive inflation that reading down is meant to prevent. If the reading down doctrine forbids courts from giving statutes meanings that go beyond their express language, it also forbids courts from giving constitutional exceptions meanings that go beyond their express terms. The appellate bench used the same tactic that it condemned: it adopted an expansive interpretation of a constitutional provision in order to achieve an institutional goal.
The Eighteenth Amendment’s introduction of Article 10A elevated the right to a fair trial, including the right to adjudication before an independent and impartial tribunal, to the status of a justiciable fundamental right; Article 175(3) imposed a constitutional obligation to complete the separation of the judiciary from the executive; these provisions do not exist in isolation from the reading down inquiry. The deeper issue with the appellate bench’s approach is that its interpretation of Article 8(3)(a). The current Constitution, not the one that existed in 1952 when the Army Act was passed or in 1975 when the F.B. Ali case was decided, is what a court must refer to when determining whether a provision can be interpreted in a way that is consistent with the Constitution. In this sense, the appellate bench was reading down in reverse when it restored the F.B. Ali nexus test without considering how Articles 10A and 175(3) alter the interpretive landscape. Rather than reading the statute up to the current demands of the Constitution, the bench read the current demands down to accommodate the statute’s historical reach.
When done correctly, reading down is not a one-way technique that simply restricts statutes. Additionally, it requires courts to give provisions their natural, contextually informed meanings rather than inflating or deflating them to achieve desired results, which disciplines constitutional interpretation itself. When the stronger textual and structural case was found elsewhere, the Jawwad S. Khawaja panel erred in basing its judgment on Article 8(5). However, the appellate bench made the more significant interpretive mistake: it read Article 8(3)(a) in a way that goes beyond the clause’s natural scope, restored a precedent without taking into consideration the constitutional amendments that have changed its operational environment, and regarded the Army Act’s internal procedural mechanisms as sufficient replacements for the independent adjudication that the Constitution, read faithfully and in full, now plainly requires. The result is a reading down of constitutional rights themselves, which is precisely what the doctrine was invented to prevent.
The story of the military courts thus sheds light on a fundamental conflict within the reading down doctrine: it serves as both a safeguard for constitutional supremacy and an instrument of legislative deference, and courts must maintain both roles in tension without merging one into the other. Despite its imprecision, the Jawwad S. Khawaja bench properly understood the constitutional direction, which is that the growth of military authority over civilians cannot be reconciled with a Constitution that today views judicial independence and a fair trial as indisputable principles. The task ahead is to articulate that conclusion through interpretive reasoning that is as textually rigorous as the outcome it reaches, and that is constitutionally necessary.
That conclusion holds in the text. It also holds up against David Hume’s own test for when reading down stops being interpretation and becomes rewriting.
Testing Both Benches Against Hume
David Hume’s account of reading down, set out in “The Rule of Law in Reading Down: Good Law for the ‘Bad Man’”[3], does not merely caution against unnatural readings; it proposes a set of affirmative maxims that courts should apply to constrain the reading down exercise. Two of these maxims bear directly on the failures of both benches.
Hume’s warning about ambulatory meanings is the first pertinent principle. According to Hume, reading down should not leave statutes with meanings that “depart markedly” from their ordinary sense and are “ambulatory or vague” because these meanings compromise the rule-of-law values of continuity and predictability by preventing citizens from being aware of the legal ramifications of their actions beforehand. This issue is brought about by the Shuhada Forum bench’s reinstatement of the F.B. Ali nexus test. The existence of a sufficient “nexus” with the armed forces or a defense post determines whether a civilian is under military jurisdiction; nonetheless, nexus is an evaluative norm whose meaning varies depending on the decision-maker. In actuality, whether the jurisdictional barrier is met depends on the organization whose interests are allegedly involved. As a result, action cannot be consistently guided by a legal criterion that cannot be predetermined. The Shuhada Forum bench made military jurisdiction more flexible rather than more stable, especially when civilian judicial oversight was eliminated.
Hume’s warning against ambiguous or unnatural departure is the second pertinent premise. Hume warns that courts shouldn’t “stretch” statutory wording or apply a “counterintuitive judicial gloss” just to maintain validity because doing so reduces legal accessibility and accountability, echoing the French CJ’s rationale in International Finance Trust. This condition is not met by the Shuhada Forum bench’s reading of Article 8(3)(a). It essentially reads “members of the Armed Forces” to include those who are not members of the Armed Forces in any common understanding of the word in order to maintain civilian-military authority. The term “member” often refers to a person’s affiliation with an organization; it does not include civilians who have never enrolled or experienced military discipline. The Shuhada Forum bench’s required departure from conventional meaning is at least as important as the Jawwad bench’s. Both benches strained constitutional language, according to Hume’s paradigm, but the Shuhada Forum bench’s distortion is more significant since it takes place at the constitutional level, where interpretive ambiguity spreads throughout the legal system.
However, the appellate bench’s argument that Article 8(5) covers temporary emergency suspensions of rights while Article 8(3)(a) offers a permanent constitutional exception made the Jawwad bench’s reliance on Article 8(5) tactically vulnerable. The ambulatory and linguistically strained connotations that the Shuhada Forum bench’s interpretation of Article 8(3)(a) developed would have been the subject of a more compelling challenge.
The Structural Argument: Trichotomy of Powers
Liaquat Hussain v. Federation of Pakistan[4] held categorically that military courts are part of the executive branch and that the doctrine of trichotomy of powers, as instantiated in the Constitution’s framework, prohibits the executive from exercising judicial functions over criminal defendants. This holding did not depend on the existence of a formal emergency, on a reading of Article 8(5), or on any comparison between Articles 8(3)(a) and 8(5). It derived directly from the Constitution’s structural architecture, Articles 175(1) and 175(3), which vest judicial power exclusively in courts and require the separation of the judiciary from the executive. The court supported this prohibition on the basis of the institutional structure of the constitution, stating:
Constitution is based on the theory of trichotomy of power, which makes the three limbs of the State, the Legislature, the Executive, and the Judiciary, independent of each other in their respective spheres. Chapter 1 of Part VII of the Constitution deals with the judicature. The judicature according to Article 175(1) of the Constitution, consists of the Supreme Court, a High Court for each Province, and such other Courts as may be established by law… The Judicature stands separated from the Executive as provided in Article 175(3) of the Constitution. Creation of Courts outside the control and supervision of the Supreme Court or the High Courts, therefore, not only militates against the independence of the judiciary but also negates the principle of the trichotomy of powers, which is a basic feature of the Constitution.
The judgment noted further:
A careful study of Articles 243 to 245 of the Constitution leaves no doubt that the Armed Forces are part of the Executive Authority of the State. It, therefore, follows that the Armed Forces cannot be assigned the function of the Judiciary, which is separated from the Executive as envisaged by Article 175(3) of the Constitution.
Mehram Ali v. Federation of Pakistan[5] had already established the corollary principle: that a tribunal exercising judicial power over citizens must itself conform to Article 175’s structural requirements, or its proceedings are void. Together, these cases established an argument that the Shuhada Forum bench had to contend with, and contend with seriously, rather than circumventing by distinguishing the civilian military jurisdiction Ordinance of 1998 from the Army Act’s permanent provisions. Thereby, quoting:
Indeed, different laws can validly be enacted for different sexes, persons in different age groups, persons having different financial standing, and persons accused of heinous crimes. However, this does not mean that a parallel judicial system can be created in violation of Articles 175, 202, and 203 of the Constitution
The appellate bench’s response to this lineage was, in essence, that Article 8(3)(a)’s carve-out for Armed Forces laws is a permanent constitutional exception that removes Army Act proceedings from the scope of Article 175(3)’s separation mandate. But this response misunderstands the structure of the constitutional order. Article 8(3)(a) is an exception to the fundamental rights provisions in Chapter 1 of Part II, it provides that those provisions shall not apply to laws relating to Armed Forces members. It says nothing about Article 175, which appears in Part IV of the Constitution governing the judiciary. The exemption from fundamental rights challenge in Article 8(3)(a) does not, by its terms, exempt Army Act proceedings from the structural constitutional requirements governing the exercise of judicial power. These are different constitutional registers, one concerns the substantive content of rights, the other concerns the institutional architecture through which those rights (and other legal questions) are adjudicated. The Shuhada Forum bench’s conflation of them was the mirror image of the error it attributed to the Jawwad bench: it collapsed a structural constitutional provision (Article 175(3)) into a fundamental rights exemption (Article 8(3)(a)), rather than allowing each to operate in its own constitutional domain.
The Dissents as the Corrective Interpretive Register
The dissenting opinions of Justices Jamal Khan Mandokhail and Naeem Akhtar Afghan in the Shuhada Forum judgment represent the most constitutionally rigorous engagement with the reading-down problem across the entire litigation saga, and they have been underanalyzed in the commentary that has followed. Both dissenting judges held that the majority’s approach to reading down Article 8(3)(a) was not merely imprecise but structurally incoherent, because it required the provision to do work it was never designed to do and could not do without distorting its relationship to the rest of the constitutional scheme.
Justice Mandokhail’s dissent proceeded on two distinct grounds. First, he engaged Article 175(3) directly and independently of Article 8, reasoning that the separation of the judiciary from the executive is a structural command that operates across the entire constitutional order, not merely within the fundamental rights chapter. A forum that is part of the executive branch cannot exercise criminal jurisdiction over citizens, not because that would violate their fundamental rights (though it does), but because the Constitution’s institutional architecture does not permit it.
The logic behind separating the judiciary from the executive is that criminal offenses are against the State, whereas the executive is responsible for administering it. A person who breaches a law is an accused of the State; therefore, the executive, having an interest in the matter, cannot itself perform as a judge to punish the accused. It is for this reason that sub-Article (3) of Article 175 of the Constitution mandates that the judiciary shall be separated from the executive
This structural argument is immune to the Article 8(3)(a) defense, because Article 8(3)(a) operates only within the fundamental rights framework. Second, Mandokhail identified circularity in the majority’s reasoning: the nexus test asks whether a civilian’s conduct is connected to the armed forces’ purposes, but the armed forces themselves make that determination. Thus:
Clause (d) does not meet the criteria for the purpose of applying it to a particular group of citizens, nor does it achieve the purpose, as provided by clause (a) of sub-Article (3) of Article 8 of the Constitution, as such, did not qualify for the exemption granted by the said sub-Article.-
If clause (d) is considered as a part of the PAA for all intents and purposes, it will not only be inconsistent with the rights conferred by Chapter I of Part-II of the Constitution (the Fundamental Rights), but will also amount to taking away or abridging the said rights of persons (civilians) accused of the offences under clause (d), hence will be void. Merely, by insertion of clause (d) in subsection (1) of section 2 of the PAA, citizens not otherwise subject to the Act, cannot be deprived of their fundamental rights.
Conclusion
Reading down exists to resolve genuine ambiguity, not to rescue legislation that is constitutionally defective on its face or to extend constitutional exceptions beyond their natural terms. Both benches in the military courts saga lost sight of this distinction. The Jawwad bench grasped the constitutional direction correctly but chose the wrong doctrinal vehicle. The Shuhada Forum bench identified that imprecision and then committed a more grave error, stretching Article 8(3)(a) way past its textual interpretational boundaries, resurrecting F.B. Ali without accounting for Articles 10A and 175(3), and treating the Army Act’s internal mechanisms as substitutes for constitutionally mandated independent adjudication. Tested against Hume’s own framework, both readings produce the ambulatory, unnatural meanings that the doctrine was designed to prevent. The dissents point toward the stronger ground: the separation of judicial power from the executive is a structural constitutional command that Article 8(3)(a)’s fundamental rights carve-out does not reach. Until that argument is squarely confronted, the nexus, and the constitutional problem it papers over, goes on.
[1] Supra note 1.
[2] Ibid
[3] David Hume, ‘The Rule of Law in Reading Down: Good Law for the “Bad Man”‘ (2014) 37(3) Melbourne University Law Review 620
[4] PLD 1999 SC 504
[5] PLD 1998 SC 1445
