“ When the State begins to compromise the rights of its people in the name of security, it does not strengthen itself. It dismantles the ve...
“When the State begins to compromise the rights of its people in the name of security, it does not strengthen itself. It dismantles the very foundation of its legitimacy upon which it claims to stand”.
Written by Aliba Tariq
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In all democracies, there comes a moment when the call for
security contradicts the principles of
liberty. The recent developments in Pakistan, especially the Supreme Court's
ruling to maintain military trials for
civilians connected to the unrest on May 9, 2023, have once more brought
the nation into this crucial discussion.
Can a democracy committed to constitutionalism, fundamental rights, and the rule of law permit the trial
of civilians before military tribunals? Can the imperatives of national security override the guarantees
of due process, open justice, and judicial
independence? Or does this signify a dangerous regression, a slide from
constitutional order into executive
arbitrariness?
These issues are now pivotal to the ongoing constitutional debate
in Pakistan, not solely due to their
impact on the fate of more than a hundred civilians undergoing military trials,
but also because they challenge the
essence of Pakistan’s constitutional democracy. Military courts are not a
foreign occurrence in Pakistan's legal history. Their origins trace back
to the early 1950s, when the state
employed military tribunals in response to the 1953 Lahore unrest. Later governments frequently
utilized comparable methods, particularly during General Ayub Khan’s martial
law, General Zia-ul-Haq’s military governance, and after the 2014 Army Public
School incident.
The 21st Constitutional Amendment of 2015 provided temporary
constitutional protection to military
courts for prosecuting terrorism-related crimes. This remarkable jurisdiction
was broadened by the 23rd Amendment in
2017 but permitted to expire in 2019. Nonetheless, following the events of May 9, 2023, when
civilians purportedly assaulted military facilities, the State chose to once again invoke the Pakistan
Army Act, 1952, to try civilians, referencing national security issues.
Initially, this move was struck down by the Supreme Court in PLD
2024 SC 337, which declared sections
2(1) (d) and 59(4) of the Army Act ultra vires Articles 8(5) and 10A of the
Constitution. Yet, in an astonishing
reversal, a five-member majority of the Supreme Court in May 2025 upheld the legality of military trials for
civilians, restoring the very provisions it had earlier invalidated. This decision, delivered by a 5–2 majority,
has reignited the debate over the balance between security and liberty in Pakistan.
Proponents of military
courts advance a straightforward rationale:
“Extraordinary times demand extraordinary measures”.
They argue that when the State’s stability is threatened and its
institutions directly attacked, ordinary
judicial mechanisms prove insufficient. Civilian courts, they claim, are
plagued by inefficiency, political
pressure, and corruption, and delay, characteristics ill-suited for times
of crisis.
Supporters of the May 2025 ruling thus justify military trials as
a necessary evil to ensure swift
accountability, deter sedition, and preserve public order. They frame
the May 9 incidents not as mere
political protests but as a coordinated assault on the sovereignty of the
State. In such instances, they contend,
the military justice system offers a reliable and disciplined framework, free from external influence and capable of
protecting national interests.
Historically, similar reasoning was given by the supporters of the establishment of special tribunals in 1975 and the military courts set
up following the Army Public School incident. Both were warranted as urgent reactions to
life-threatening dangers. Supporters also emphasize that the recent Supreme Court ruling mandates the
government to create an appeals process within 45 days, which they consider a protection against
capriciousness. Indeed, these arguments, although appearing convincing, falter under closer
constitutional examination.
Opponents of military trials argue that such tribunals, by their
very nature, offend the core principles
of the Constitution, particularly the right to a fair trial, separation of
powers, and judicial independence.
Article 10A of the Constitution clearly assures the right to a
fair trial before an unbiased and
independent tribunal. Military tribunals, made up of active officers
under the executive command hierarchy,
cannot fulfill this constitutional requirement. Their processes are
confidential, decisions lack
justification, and the defendant is barred from civilian appeals. These
characteristics directly contradict
Articles 4, 8, 9, 10A, and 175(3), which together protect the rule of law and
the independence of the judiciary
The Supreme Court’s 2024 judgment (PLD 2024 SC 337) had
categorically declared that civilians
could not be tried under military law. It found sections 2(1) (d) and
59(4) unconstitutional because they
allowed the military to assume jurisdiction over civilians without
constitutional amendment. It also
condemned the practice of Anti-Terrorism Courts transferring civilian custody
to military authorities under Section
549 of the CrPC, deeming it legally void.
By overturning this precedent in 2025, the Court not only
contradicted itself but also undermined
its institutional credibility. The Court’s abrupt reversal within six
months, without any change in the law or
facts, exposes a serious inconsistency that erodes public trust in the
judiciary’s integrity.
The recent judgment has been widely condemned as a betrayal of
constitutionalism. The Court’s
declaration that the right to a fair trial is fully protected under the
Army Act is a legal contradiction. If
fairness already existed, why direct the government to create a new right of
appeal? This paradox is an implicit
admission that the military justice system fails to meet constitutional fair
trial standards.
The proposal for
Parliament to establish an appellate forum does little to address the core
issue: the lack of independence in
military judgment. The ability to seek an appeal from one executive led entity
to another cannot replace judicial review by an impartial court.
Pakistan has signed the International Covenant on Civil and
Political Rights (ICCPR), which requires
it to guarantee trials in front of capable, independent, and unbiased courts.
The United Nations Human Rights
Committee has consistently condemned military tribunals for adjudicating civilian cases, highlighting the inherent
lack of independence in these courts. The Paris Minimum Standards of Justice and the Draft Principles
on the Administration of Justice via Military
Tribunals likewise forbid the prosecution of civilians in military
courts, except in narrowly defined,
exceptional situations.
Additionally, Pakistan's history with military courts demonstrates
widespread abuse. From 2015 to 2019,
military tribunals found more than seven hundred civilians guilty, with many
receiving death sentences, and a
conviction rate surpassing ninety-nine percent. The majority of trials
were conducted in secrecy, defendants
were not allowed legal representation, and confessions were frequently obtained through coercion.
Relatives of the accused were not informed about the charges nor granted access to the verdicts.
Such actions clearly violate both national and
international human rights norms.
Under the Pakistan Army Act, civilians can be detained without
timely judicial oversight and tried
through secret military proceedings lacking transparency, independent
judges, or civilian appeals violating
core constitutional safeguards such as access to counsel, open trials, and
appellate review. This shift from
civilian to military jurisdiction effectively suspends fundamental rights and
marks a regression from
constitutionalism toward authoritarianism. The reliance on military
tribunals exposes the State’s failure to
reform the civilian justice system and erodes democratic accountability, concentrating unchecked power
within the military and undermining the separation of powers guaranteed by Article 175(3) of the
Constitution.
The trial of civilians before military courts stands as a grave
affront to constitutionalism and human
rights. It undermines the core principles of fair trial, judicial
independence, and civilian supremacy,
which are the fundamental foundations of Pakistan's democracy. The
Supreme Court’s ruling in 2025 has
obscured the distinction between civilian justice and military power,
diminishing public trust in the
judiciary’s ability to protect their rights. By resurrecting a tradition based
in martial law, the Court has reversed
progress in Pakistan’s democratic development.
For the State to ensure its security, it should enhance
institutions rather than limiting rights.
Revamping the police, updating prosecution services, and strengthening
Anti-Terrorism Courts would offer
enduring answers. Security obtained through repression is neither lasting nor
fair; it fosters estrangement and
undermines the legitimacy of the State itself.
Ultimately, Pakistan must choose between being a constitutional
democracy led by law or a national
security state ruled by fear. Real strength is found not in quelling opposition
through hidden courts, but in
maintaining justice publicly, where it is visible, examined, and reliable. Justice should not only be achieved but also
perceived to be achieved, guided by the Constitution rather than influenced by military courts.
Disclaimer:
This article was written by the author with limited assistance from AI tools for editing and clarity. All opinions, arguments, and conclusions are solely those of the author.
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