By Staff Reporter
ISLAMABAD: The Supreme Court of Pakistan on Wednesday restored the military’s authority to try civilians in military courts, overturning its own ruling from last year in a decision that has ignited fierce debate over judicial independence and civil rights.
In a 5-2 verdict, the court revived provisions of the Pakistan Army Act (PAA) that allow military trials for civilians in national security cases, reversing an October 2023 decision that had struck them down.
The court’s ruling reversed its previous decision, which had struck down Sections 2(1d)(i) and (ii) and Section 59(4) of the PAA in a split 4-1 verdict. Those provisions, now revived, allow military courts to prosecute civilians in cases deemed to threaten national security — a power that had been central to the armed forces’ legal reach.
“The impugned [Oct 23] judgement is set aside and … Sections 2(1d)(i) and (ii) as well as Section 59(4) of the PAA are restored,” Justice Aminuddin Khan, reading the majority judgement, declared.
The majority—comprising Justices Khan, Muhammad Ali Mazhar, Syed Hasan Azhar Rizvi, Musarrat Hilali, and Shahid Bilal Hassan—held that these clauses do not violate the Constitution’s fundamental rights provisions.
The court argued that Article 8(5), which permits reasonable restrictions on rights, and Article 8(3), which exempts certain laws from constitutional scrutiny, provide sufficient legal grounding. “Thus, it does not control the rigours of Article 8(3),” the judgement explained, dismissing claims that the provisions suspend fundamental rights under Article 233, which governs states of emergency.
The decision was shaped by the violent unrest of May 9, 2023, when, according to Attorney General for Pakistan Mansoor Usman Awan, 39 military installations were attacked across the country—23 in Punjab, eight in Khyber Pakhtunkhwa, seven in Sindh, and one in Balochistan.
Awan told the court that the assaults, mostly opposition Pakistan Tahreek-e-Insaf party of former prime minister Imran Khan’s supporters, which targeted sites including the General Headquarters (GHQ), the Lahore Corps Commander’s House, Mianwali Air Base, and ISI offices in Sargodha, Faisalabad, and Rawalpindi, were “coordinated and deliberate,” unfolding within a span of four to six hours.
The Lahore Corps Commander’s House, he revealed, was rendered nonoperational for four to five hours, while disciplinary action was taken against military personnel for dereliction of duty.
“No doubt, all miscreants, lawbreakers and perpetrators of May 9 incidents are liable to be punished on proving their guilt, subject to right of appeal against their conviction,” the majority judgement stated.
To balance security and due process, the court gave parliament 45 days to amend the PAA, mandating an appeal process for convicted civilians in civilian high courts—a nod to the constitutional right to a fair trial.
“The independent right of appeal before an independent forum is a basic limb of the doctrine of due process,” the court observed, noting that high courts could review whether a fair defense, sufficient evidence, and proper procedures were upheld in military trials.
The clock for filing appeals, however, will not start until the amendments are officially notified. In the interim, the judgement clarified that trial courts will independently handle any pending high court petitions challenging transfers of civilian cases from anti-terrorism courts to military jurisdiction.
Two justices, Jamal Khan Mandokhail and Naeem Akhtar Afghan, dissented sharply, arguing that the PAA, as a disciplinary statute for armed forces personnel under Article 8(3a), offers no fundamental rights to civilians. They asserted that Section 2(1d), which extends military jurisdiction to civilians, cannot be shielded from constitutional scrutiny and should not stand.
“The courts martial, consisting of executive, being outside the scope of Article 175(3) of the Constitution, cannot prosecute the civilians,” the minority judgement stated, referring to the constitutional provision mandating judicial independence from the executive.
The dissenters warned that such trials “offend the fundamental principle of independence of judiciary” and violate rights to security, fair trial, due process, equality, and even Islamic injunctions.
The minority also pointed to Pakistan’s international commitments, arguing that military trials of civilians breach the International Covenant on Civil and Political Rights (ICCPR) and other UN human rights conventions to which Pakistan is a signatory.
Declaring such convictions unconstitutional, they ordered that civilians currently held under military rulings be treated as under-trial prisoners and their cases transferred to civilian courts for retrial. Those already acquitted or who had served sentences, they ruled, should be discharged under Section 169 of the Criminal Procedure Code.
The decision has drawn a firestorm of criticism from legal and political figures. Tariq Mehmood Khokhar, a former additional advocate general, condemned the verdict as “insanity devoid of constitutional sense,” accusing the judiciary of “judicial capitulation, collaboration and complicity” that “emboldened the worst excesses of the established order.”
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