On July 18, the Chief Justice of Pakistan (CJP) Umar Ata Bandial observed that “civilians should not be put through the rigours and harshness of military courts” and that such trials were not according to the Constitution.1 Such an observation came after the decision by the government in conjunction with the Pakistan military to try over 100 civilians arrested for attacks on government buildings and military installations through military tribunals.
Pakistan has been bereft of political stability since former Prime Minister Imran Khan was voted out of the parliament via a no-confidence motion in April 2022. The Pakistan Tehreek-e-Insaf (PTI) leader was then charged under the anti-terror law, disqualified from running for office for five years, and was also shot in the leg during a protest rally in Punjab.2 He was subsequently arrested in May 2023, following which widespread protests broke out, turning into clashes and attacks by PTI supporters on government buildings and military installations.3 Even though Khan was released on bail, security personnel arrested thousands of protestors, out of which the government decided to conduct trials of over 100 of those through military tribunals.4 The decision was made after a meeting by the National Security Committee (NSC) on May 16 to try the protestors under the Army Act and the Official Secrets Act.5 The accused will be tried under ‘special standing courts’ that have been already operating under the military act.6 The decision taken by the NSC was quickly ratified during a federal cabinet meeting chaired by Prime Minister Shehbaz Sharif on May 19.7
The decision led to considerable discussions regarding the legality of such proceedings as per international law. The Pakistan Federal Minister of Law and Justice, Azam Nazeer Tarar, justified the government’s response by arguing that the protest was not political. He noted, “At some places, they used the petrol bombs… if a group of persons with criminal intent cause damage, while criminally trespassing into public property and set it ablaze, they commit arson. This would be an act of terrorism”.8 He also referenced the protests to the 9/11 attacks, or the terrorist attacks carried out by the Tehreek-e-Taliban Pakistan (TTP).9 Imran Khan, along with former CJP Jawwad S. Khawaja and a few others, filed a petition with the Supreme Court urging it to declare the military trials unlawful, proceedings for which are ongoing at the time of writing.10 The government has urged the Supreme Court to dismiss all petitions on the subject, referencing Article 245 of the Constitution, under which “the armed forces have been charged with the obligation to defend Pakistan against external aggression or the threat of war”.11 The Attorney General of Pakistan (AGP) informed the court that “prima facie the conviction would not entail capital punishment, adding that the reasons for the military courts’ decisions would also be recorded and that the suspects would be allowed to engage the counsel of their choice”.12
Military trials in the country have traditionally been held behind closed doors, depriving civilians of basic rights, including contracting a lawyer of their choice.13 Under the Pakistan Army Act (PAA) 1952, Pakistan Air Force Act 1953, and Pakistan Navy Ordinance 1961, “military tribunals are established for the purpose of punishing military personnel”.14 The use of military courts in Pakistan to try civilians was initially authorised in 2015 through the passage of the Constitution (Twenty-first Amendment) Act, 2015 and the Pakistan Army (Amendment) Act, 2015.15 Specifically, section 2(d) of the PAA empowered the military tribunals to try “civilians facing charges of terrorism or abetting terrorist activity”.16 At the time, this amendment was justified in response to a surge in terrorism and the need for swift justice to combat the threat. In December 2014, six Tehreek-e-Taliban Pakistan (TTP) militants attacked a school in Peshawar, killing 150 students and staff. Subsequently, in January 2015, the government passed a bill authorising the army to conduct terrorism-related trials for a period of two years.17
However, this was not the first time that the country had toyed with the idea of establishing military courts. Two previous instances included once after the 1977 elections when Zulfikar Ali Bhutto had constituted ‘Summary Military Courts’ in response to the agitation of the opposition parties and another time in 1998 when Nawaz Sharif attempted to establish military courts in Sindh via an ordinance.18 In both instances, the Court declared such actions unconstitutional, thereby having no legal effect. Notably, both attempts were followed by a military coup.
There have been concerns raised by human rights organisations and legal experts about the use of military courts to try civilians. One of the main criticisms is that it undermines the principles of due process and fair trial, which are fundamental rights protected by international human rights law.19 Military courts generally operate under a different set of rules and procedures compared to civilian courts, which can potentially compromise the rights of the accused. The Amendment to the PAA of 1952 in 2015 authorised military courts to try civilians, including individuals, groups, organisations, or sects, for offences related to violence and terrorism. This Amendment brought forth a very broad genre of offences into the domain of such military courts, which included attacks on military officials or their installations, position and transportation of explosives and firearms, use of vehicles for terrorist activity, offences causing death or serious injuries, creating terror and insecurity, a threat to the state’s security, or the general public, funding or receiving funds for any of the aforementioned purposes, waging anti-state war, or attempt to commit any of the aforementioned acts.20
The government argued that military courts were necessary to expedite trials, enhance security, and protect witnesses. Military courts were reinstated upon their expiry in 2017 through the Constitution (Twenty-Third Amendment) Act 2017.21 However, the constitutional validity and legality of the military were subject to intense contestations upon its renewal, as over 200 writ petitions were filed in the Peshawar High Court “mostly by close relatives of the military court convicts”.22 The fate of those convicted by the military courts mostly rested on the members of the legal society. While the Chief Justice of the Peshawar High Court, Yahya Afridi, had upheld the convictions in 2017, Chief Justice Waqar Seth provided relief to the convicts in 2018, ruling that “these cases of convictions were of no evidence and were based on malice in law and facts”.23
The Pakistani government has often argued that the use of military courts to try civilians has been subject to periodic review and debate. The government has repeatedly stated that using military courts is temporary until it can strengthen the civilian justice system.24 Even so, in 2019, the PAA was again discussed in order to extend the duration of military courts, as the government expressed its intention to phase them out gradually. Until 2019, in four years, up to 646 people were tried, out of which 641 were convicted, with 345 being sentenced to death and 296 others given prison sentences.25 That would bring the conviction rate to over 99.2 per cent. As such, Pakistan remains the only country in South Asia to allow military courts to try civilians for non-military offences.26
Moreover, Pakistan’s military courts have had ramifications beyond the country’s population. Kulbhushan Jadhav, an Indian national who was arrested in March 2016, was sentenced to death by an Army Court based on an “extracted confession” by the military personnel.27 The execution was put on hold after the International Court of Justice (ICJ) intervened upon India’s objection. If the propensity of the Pakistani military to use military courts goes unchecked, this can have a spillover effect and also impact foreign nationals working in and engaging with Pakistan. Therefore, it becomes important to keep a check on such tribunals and their functioning.
The country has received criticism from international partners as well as human rights organisations. In June 2017, the European Parliament“deplored” Pakistan for using military courts and expressed concerns over the “alarming rate of executions [based on] flawed trials”.28 The European Parliament also insisted that the “authorities grant access to international observers and human rights organisations for purposes of monitoring the use of military courts”.29 Following the government’s recent decision of May 2023 to use military courts, US State Department urged Pakistani authorities “to respect democratic principles and the rule of law for all people, as enshrined in the country’s constitution”.30 International human rights bodies, including the United Nations Human Rights Committee (UNHRC) and the International Commission of Jurists, have also expressed concerns about civilian trials in Pakistan’s military courts.31 They argue that military courts should have limited jurisdiction and that the primary responsibility for trying civilians should rest with the civilian justice system, which is better equipped to protect the rights of the accused. The international legal framework, particularly the International Covenant on Civil and Political Rights (ICCPR), to which Pakistan is a party, emphasises the right to a fair trial. Article 14 of the ICCPR guarantees several important rights, such as the presumption of innocence, the right to be informed promptly and in detail of the charges, the right to adequate time and facilities to prepare a defence, and the right to have the trial conducted in public.32 Military courts do not always uphold these rights to the same extent as civilian courts.
In conclusion, there are four observations which stand out. First, while the initial impetus of the government and military to use these tribunals in 2015 was an immediate response to the terrorist attack of December 2014 in Peshawar, over time, such courts have been used by the military to exert further dominance in the civilian-political sphere. Second, nevertheless, attempts to use military courts have always been contested. While at least two earlier attempts in 1977 and 1998 were blocked by the judiciary, 2015 provided a relatively clear path, even though there were concerns over its misuse. Subsequently, there was also resistance when the government had to reinstate the military courts in 2017, as the initial two-year period had expired. Third, the decision to use military courts over the May 09 violence to try over 100 civilians has been challenged not only by PTI chairman Imran Khan but others, including former Chief Justice of Pakistan Jawwad S. Khawaja. Therefore, the response is not merely from aggrieved political parties or leaders, but it has also come from members of civil society.
Finally, the proceedings of the Supreme Court so far reviewing the petitions filed against the use of military courts have suggested that there is a growing rift between the judiciary and the military. As Christina Goldbaum and Salman Masood note, “For much of Pakistan’s turbulent history, the country’s judiciary was seen as a junior partner of the military, a tool used to legitimize its more direct forays into the political sphere”.33 However, this seems to be changing as the judiciary has overruled the military and the government several times in the past few months. In April 2023, CJP Bandial declared the government’s decision to delay the assembly elections unconstitutional and ordered to hold snap elections in two provinces on May 14.34 The Supreme Court also released Imran Khan soon after his arrest, and the Islamabad High Court granted him pre-emptive bail in several cases. Another landmark decision by the Supreme Court was in March when the parliament passed a law to curtail the powers of the Chief Justice of Pakistan. However, the Court issued an injunction to prevent the law from taking effect.35 Such actions will likely increase the military and government’s resolve to continue using military courts to try civilians.
The use of military courts to try civilians in Pakistan has been a contentious issue, raising concerns about due process, fair trial rights, and compliance with international legal standards. Instances of establishing military courts have been observed at various points in Pakistan’s history, both during military rule and under civilian governments. While the government has justified their use as necessary to combat terrorism and expedite justice, human rights organizations and legal experts argue that such trials may compromise the fundamental rights of the accused. As the nation grapples with these issues, concerns about the impact of military trials on civil liberties persist, sparking the need for further discussions about justice, accountability, and the protection of basic rights in Pakistan’s legal system.
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ENDNOTES
1. Nasir Iqbal, “CJP opposes applying tough military laws to civilians”, Dawn, July 19, 2023
2. “Timeline: Imran Khan, from ouster to arrest in Pakistan”, Al Jazeera, May 09, 2023
3. Munir Ahmed and Riazat Butt, “Pakistan’s ex-PM Imran Khan arrested, sparking violence”, Associated Press, May 13, 2023
4. “Pakistan: More than 100 tried in military courts over May 9 violence”, ANI, June 26, 2023
5. “Pakistan’s Cabinet Endorses Military Court Trials For Individuals Involved In Attacks On Army Installations”, The Outlook, May 20, 2023
6. Ibid.
7. Rizwan Shehzad, “Cabinet backs military court trials”, The Express Tribune, May 20, 2023
8. Vincent Ni, “Pakistan’s law minister defends putting protesters on trial in military courts”, NPR, June 27, 2023
9. Azam Nazeer Tarar, “The trial of civilians in military courts under Pakistan Army Act and the Official Secrets Act”, The Nation, June 22, 2023
10. “Pakistan government urges top court to dismiss pleas challenging military trial of May 9 rioters”, The Economic Times, July 18, 2023
11. Omer Farooq Khan, “Pakistan Supreme Court snubs Shehbaz Sharif government on Imran protest trials”, The Times of India, July 19, 2023
12. Nasir Iqbal, “Govt rules out capital punishment in cases under army act”, Dawn, July 22, 2023
13. AribaShahid, “Factbox: Pakistan’s military courts spotlighted in Khan crisis”, Reuters, May 17, 2023
Also see, Aamir Saeed, “Trial of civilians in military courts ‘totally unjustified,’ Pakistan’s top rights body says”, Arab News, May 31, 2023
14. Muhammad Azhar Siddique, “Civilians in military courts”, The Nation, June 25, 2023
15. Waseem Ahmad Shah, “View from the courtroom: Military courts-related legal issues far from being settled”, Dawn, December 21, 2020
16. Malik Asad, “The new martial powers”, Dawn, January 07, 2015
17. Jon Boone, “Pakistani politicians vote for military courts to try civilians”, The Guardian, January 6, 2015
18. BhaktMunir&Ataullah Khan Mahmood, “Establishment of Military Courts in Pakistan and its Effects on Trichotomy of Powers: International and Domestic Standards”, Pakistan Vision Vol. 21(2), 2020
19. “Pakistan: Civilians must not be tried under military laws”, Amnesty International, May 16, 2023
20. “Army (Amendment) Act, 2015”, National Assembly of Pakistan, January 08, 2015
21. Syed Raza Hassan, “Pakistan Amends Constitution to Reinstate Secret Military Courts”, The Wire, March 22, 2017
22. Waseem Ahmad Shah, “View from the courtroom: Military courts-related legal issues far from being settled”, Dawn, December 21, 2020
23. Ibid.
24. Reena Omer, “Temporary law mustn’t become permanent”, The Statesman, January 10, 2019
25. “Military “justice” system: a glaring surrender of human rights”, International Commission of Jurists, January 16, 2019
26. “Pakistan: Civilians must not be tried under military laws”, Amnesty International, May 16, 2023
27. “Kulbhushan Jadhav case: A timeline”, The Hindu, July 16, 2019
28. “Concerned over alarming rate of execution in Pakistan after flawed trials: European Parliament”, The Indian Express, June 16, 2017
29. Ibid.
30. Vincent Ni, “Pakistan’s law minister defends putting protesters on trial in military courts”, NPR, June 27, 2023
31. “Military Injustice in Pakistan”, International Commission of Jurists, January 2019
32. “International Covenant on Civil and Political Rights”, UN Human Rights, December 16, 1966
33. Christina Goldbaum and Salman Masood, “Pakistan’s Powerful Military Faces New Resistance From Courts”, The New York Times, May 31, 2023
34. Abid Hussain, “Pakistan’s Supreme Court orders Punjab election on May 14”, Al Jazeera, April 04, 2023
35. “SC halts bill on CJP’s powers from taking effect”, The Express Tribune, April 13, 2023
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