Picture fair trial: an independent forum, an impartial judge, a detailed judgment, and a substantive right of appeal. Now, picture its absence: court-martials. Trials where guilt is declared without reasons, judgments are whispered behind closed doors, and the right to be heard becomes a privilege to be offered, not a protection to be enforced.
Last year, 103 civilians were on the brink of being court-martialled under a law from the Ayub era. The idea that Imran Khan could be tried under the same framework surfaced repeatedly. But, for a brief moment, there was clarity. A five-member bench of the Supreme Court in Jawwad S.Khawaja v. Federation of Pakistan (PLD 2024 SC 337) declared military trials of civilians unconstitutional. Justice Munib Akhtar (Munib J.), writing for the majority, reminded us that in a constitutional order, rights are not things that vanish in times of unrest. Justice Ayesha Malik (Ayesha J.) added: Court-martials do not meet the standard of a fair trial, and they never can. It was, as the court proclaimed, the language that the Constitution should and did speak.
But it did not take long for that language to be rewritten.
On 7 May 2025, the Supreme Court set aside that decision. A bench of seven judges of the newfound constitutional bench, by majority in Shuhada Forum, Balochistan v. Justice (R) Jawwad S. Khawaja (2025 SCP 165) upheld the legality of military trials for civilians under section 2(1)(d) and 59(4) of the Army Act. The provisions that say if a civilian is accused of certain offences — subversion, incitement, mutiny — they can be made subject to the military justice system. From that moment, the ordinary rules of criminal procedure no longer apply. Instead, the civilian enters a parallel world: closed trials, military judges, no right to a detailed judgment, and no right of appeal to an ordinary court (unless Parliament, in its graciousness, decides to create one).
The simplicity of the process is part of its danger. A label like “subversion” is applied, and the wheels of the chariot churn smoothly. The only question left for a civilian court is one of jurisdiction. If the accused is deemed subject to the Army Act, the civilian courts have to step aside. It cannot test the evidence, cannot examine the charges, cannot ask whether the accused was even rightly brought before the military court in the first place. The assumption, rather than a scrutiny-based finding, is that a court-martial is a court of competent jurisdiction. For civil offences that these civilians subject to the Act commit, a military officer being the “prescribed officer” decides where the case should go, and his decision is subject to appeal before the federal government only. If the process reeks of executive and executive alone, it is because this is just so. The military trial process was devised by the British for bringing discipline among the army. To sit and be tried by their own officers was something that our Constitution also signed off to under Article 8(3), anchored as it was in a long-standing legislative and constitutional history.
But the trial of civilians by the executive is something that receives, and as it must be said, ought to receive, constitutional condemnation in several ways.
By Munib J., it was by asserting that even though Article 8(3) creates a general exception to fundamental rights, its wording is confined to members of the defence forces “for the purpose of ensuring the proper discharge of their duties or the maintenance of discipline among them”, that exception, under the present constitutional order could not be used to justify trials of civilians.
First, he clarified how this case was different from the existing judgments. District Bar Association, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401) did not apply because there, parliament had enacted the 21st Constitutional Amendment to explicitly authorize the trial of civilians by courts-martial—the present case involved no such constitutional cover. In fact, the Court in DBA had upheld military courts precisely because the Constitution had been amended to allow them, albeit temporarily. That constitutional amendment was accompanied by a statutory amendment to the Army Act, both subject to a sunset clause that expired in 2019.
Similarly, Liaqat Hussain v. Federation of Pakistan PLD 1999 SC 504 was also inapplicable. That 1999 case concerned the legality of military courts established via a presidential ordinance outside the Army Act, and during a time of proclaimed emergency under Article 232, as well as Article 245 deployment of the armed forces. Even then, the Court had struck down the ordinance for creating a parallel judicial system in violation of Mehram Ali v. Federation (PLD 1998 SC 1445). However, the military courts being challenged in Liaqat Hussain were not courts martial under the Army Act. Instead, they were specially created military tribunals established via an ordinance, operating outside the established military legal framework. This made them fundamentally different from the court martials addressed in this case. Munib J. acknowledged this distinction. While Liaqat Hussain prohibited parallel military courts that bypass the judicial system, it did not prohibit courts martial that are lawfully constituted under the Army Act; however, the judgment also did not implicitly condone the trial of civilians in these military courts, which is what Munib J. picks on.
In that sense, the challenge at present was a more substantial one. There were judgments of old including F.B. Ali v. The State, PLD 1975 SC 506 that interpreted Article 8 (3) (or its like) to allow civilians trials when their specified offences apparently disturb army discipline, Munib J. however, noted a new development, courtesy Article 8(5), introduced for the first time in the 1973 Constitution. The said article clearly states that fundamental rights cannot be suspended except as expressly allowed by the Constitution. Because a denial of fundamental rights for a person accused of specified offences is based on the logic of suspension of those rights for them, there is a tension between the two provisions. And in this apparent “tussle” between these two clauses, the judge holds that Article 8(5) would limit Article 8(3)’s exception to the subject categories it expressly concerns — disciplinary forces, and not civilians.
Justice Ayesha Malik takes us to the incorporation of Article 10(A) and the express integration of a right to fair trial in our Constitution. The same, she says, provides a departure point from older judgments which had given civilian court-martials the nod. Fair trial is not about conviction or acquittal; it is about process, she tells. The process must be public, independent, and reasoned. Military courts fail this test by design. They do not write judgments. They do not explain why the evidence was accepted or rejected. The accused may not be allowed to prepare a proper defence. The very architecture of these courts is incompatible with the civilian justice system. And it is also the absence of a right of appeal, which can’t be a subject of Parliament’s whim.
In the recent dissent by Justice Mandokhail in Shuhuda Forum (2025 SCP 205), the focus is on the basics—separation and independence of executive from judiciary — a mandate that was missing at the time of earlier judgments, but was executable now. In essence, these three judgments were about watersheds, about change that guides us forward. Change in time and a change in our Constitution, that it must be said, did not require a stretching of its text.
Yet, to the larger bench, it’s as if none of this change exists. They claim that the Army Act already provides sufficient safeguards. If the existing system already meets the constitutional standard for fair trial, why then the need for legislative reform and a referral to Parliament to provide an appeal? And if reform is needed, how can the current system be said to be compliant?
With all due respect, the larger judgment has held us back in the decades of the ’70s or ’80s, subject to laws that were incorporated by dictators primarily for their own security. The court chose to ignore all the watersheds that three well-reasoned judgments have noted, and at a time when we could have moved forward, it has held us backward. Even though there is only a short order that speaks for the majority, and a detailed judgment is awaited, the above critique is befitted because several well-auguring paths were open to this larger bench— one that Justice Mandokhail chose to take—all leading to the much-desired outcome.
When I speak of change, the change is not only internal, in domestic law. Across common law jurisdictions — the United Kingdom, the United States, Australia, India — military trials of civilians have been confined to emergencies or prohibited altogether. In India, with the same Army Act as us, the concerned provisions were never added, and civilian trials remain within the remit of civilian courts. The idea that a military tribunal can try an ordinary citizen in peacetime for acts committed on civilian land is an anomaly. We are clinging to it — even defending it — while the world moves on.
This is not to say that the original judgment by Munib J. was without criticism. One could argue, as Justice Yahya Afridi did, that the question required a larger bench because it involved overturning long-standing precedents. That argument had merit. But the judgment’s core — that fundamental rights cannot be implicitly denied — was sound and it was timely. It tried to break from a jurisprudence that had, for far too long, allowed authoritarian laws to coexist with democratic aspirations.
Now that break has been undone. And the timing of this reversal cannot be ignored. The country is once again in a period of geopolitical anxiety. And while the army did put up a brave front to India, accruing redounding civilian support, it was at the same time that the judiciary chose to retreat by throwing civilians at the mercy of a draconian system. It’s bizarre to even think that a celebratory population was told that they could be stripped of their fundamental rights at the behest of the same forces that are fighting to preserve their lives. It should never have been that we could be thinking of making this trade-off.
This verdict is not a return to legality. It is a return to submission. A submission to the idea that civilians can be exceptionalised. That justice can be conditional. That rights can be denied behind the veil of discipline. We have seen this before. The Defence of Pakistan Rules. Preventive detention on suspicion. The targeting of political dissent in the name of stability. And always, a law or a court willing to look the other way.
And to the enduring belief which becomes a justification for such like measures is that our civilian courts are weak and cannot impart justice, Justice Mandokhail has said clearly that the Constitution cannot be made to yield every time the State feels pressured. That the judiciary’s role is not to validate power but to constrain it, he reminds us. The civilian courts are not perfect. They are under-resourced. They are sometimes slow. But they are courts. They are visible. They are accountable. Their judgments can be criticised, appealed, overturned. That is how justice is supposed to work. Military courts offer none of this.
That reminder, coming from within the court itself, should not be taken lightly.
This is not a defence of those who attacked public property or military installations. They must be held accountable — but by the right forum, under the right procedures, with the right protections. Justice must be firm, yes. But it must also be fair. Otherwise, it is not justice at all. The Supreme Court had spoken with clarity on this issue. It said that the Constitution does not go silent in times of conflict. That judgment was an opportunity. It acknowledged the dark history of laws introduced under martial rule. It tried to reassert the primacy of rights in a system that often forgets them. It was not perfect. But it was principled. It should have been upheld.
