The Trial of Civilians in Military Courts: Balancing National Security and Justice

The trial of civilians in military courts remains a contentious issue in Pakistan’s legal and political landscape. Often justified on the grounds of national security, this practice raises serious concerns about human rights, constitutional principles, and the role of the judiciary in ensuring justice.

This blog delves into the historical, legal, and recent developments surrounding this issue, with a focus on the Supreme Court judgment in PLD 2024 Supreme Court 337, which sheds light on military courts and their impact on Pakistan’s justice system.

Historical Background: How Did We Get Here?

Colonial Era (Pre-Independence)

During British colonial governance in India, the legal system was established to maintain British imperial dominance and discourage any acts of rebellion or opposition to colonial power. The British government aimed to create a legal framework that would uphold order and control, frequently compromising civil liberties and freedoms.

A significant piece of legislation that established military authority over civilians was the Army Act of 1911. This legislation enabled the British Army to set up military courts with the power to adjudicate citizens concerning military issues, especially those pertaining to mutiny, rebellion, or defiance. These laws were established amid an increasing recognition of the possibility of unrest, especially following major revolts like the 1857 Sepoy Mutiny, a crucial event in colonial India. The British officials reacted to the rebellion by granting more authority to military courts, convinced that they were crucial for preserving order amid political turmoil.¹

The Army Act of 1911 permitted military officials to circumvent the usual civil courts and prosecute civilians in military tribunals, especially in instances considered threats to British rule. These military tribunals were not governed by the same procedural and evidentiary standards as civilian courts, and defendants frequently had constrained rights, such as limited access to legal representation. The main objective of these courts was to guarantee the rapid quelling of any suspected threat to colonial governance, including behaviours that might be seen as sedition, insurrection, or resistance to British power. The judicial processes in these courts frequently faced criticism for their opacity, and the procedure was viewed as a method to suppress dissent instead of promoting justice. Consequences for individuals convicted by military tribunals varied from incarceration to capital punishment, with a strong focus on deterrence. 2

Following the division of India and the establishment of Pakistan in 1947, Pakistan took on numerous elements of the British colonial legal framework, including the authority of military tribunals to adjudicate civilian cases. This heritage continued to shape Pakistan's legal system, particularly in periods of political unrest and martial law, when military courts became essential to the state's strategies for managing political dissent.³

Post-Independence: Building Pakistan’s Legal Framework

Following independence, Pakistan adopted colonial laws and increased military authority over civilians:

When Pakistan gained independence in 1947, it took over a significant portion of the British legal framework, which included regulations concerning military courts. The Pakistan Army Act of 1952 continued this tradition by granting the military broad authority to prosecute citizens in matters concerning national security, mutiny, or rebellion. This initiated a structured framework in which military authority could supersede civilian courts regarding issues pertaining particularly to the armed forces.

Throughout times of martial law, particularly in 1958, 1977, and 1999, military tribunals grew more common. These were periods when the civilian court system was halted, and military leaders took direct charge of the government. The military employed these courts to tackle not just security matters but also to confront political dissent, raising worries about the undermining of democratic practices and the autonomy of the judiciary. During these times, military governance solidified its authority by circumventing civilian legal frameworks, creating military courts as a key element of Pakistan’s judicial and political environment.4

The War on Terror (2008–2019)

The landscape altered considerably during Pakistan's battle against terrorism. The War on Terror led to significant changes in Pakistan's security policies and the establishment of military courts.

Following the tragic attack on the Army Public School in Peshawar in 2014, resulting in over 140 fatalities, including 132 children, the government implemented the 21st Constitutional Amendment in 2015. This amendment allowed military courts to temporarily try citizens accused of terrorism-related offenses. The move was seen as a prompt response to the rising danger of terrorism and the shortcomings of the civilian legal system in successfully prosecuting those involved in terrorist activities.⁵

Nonetheless, the employment of military tribunals generated significant discussion. Although numerous people endorsed the measure as an essential action in fighting terrorism, some expressed worries about the risk of human rights violations, particularly the absence of transparency in military trials. Certain critics worried that these courts could establish themselves as lasting components of Pakistan's legal framework, compromising judicial independence and diminishing civil liberties. Significantly, throughout this timeframe, numerous people received death sentences from military courts, with a few being executed, which intensified conversations regarding the boundaries of military authority and its possibilities for abuse.6

Significant Legal Precedents

Several landmark cases have shaped the discourse around civilian trials in military courts:

1. Dosso Case (1958)

The Dosso Case (1958) stands as one of the first and most important rulings concerning martial law in Pakistan. Following the military coup orchestrated by General Ayub Khan that removed the elected government, the Supreme Court encountered a dilemma concerning the legitimacy of martial law and the actions of the military regime. In this instance, the court confirmed the enforcement of martial law, effectively endorsing the military's takeover. The ruling was based on the "doctrine of necessity," which provided a rationale for the suspension of the Constitution and the implementation of military governance amid the political turmoil in the nation.

The court reasoned that when a revolution or coup takes place, the legal system must acknowledge the new reality, even if it entails actions that could otherwise be deemed unconstitutional. This choice established a benchmark for military involvement in Pakistan's political matters and created the groundwork for subsequent military governance. Despite being contentious, it set forth the notion that the military could hold ultimate authority during national emergencies, encompassing trials carried out by military tribunals. This case continues to serve as a key example of how Pakistan's judiciary has managed the equilibrium between military power and civilian governance.⁷

2. 21st Amendment Cases (2015)

In 2015, following the horrific attack on the Army Public School in Peshawar by militants, Pakistan’s government passed the 21st Amendment to the Constitution, allowing military courts to try citizens involved in terrorism. The legal justification for this move was the overwhelming national security threat posed by extremist groups in the country. The 21st Amendment gave the military the authority to handle terrorism-related cases swiftly, bypassing the civilian judicial system.

The Supreme Court, however, was tasked with reviewing the constitutionality of the amendment. In its ruling, the court accepted the necessity of military trials for terrorism-related offenses but stressed that fundamental rights, particularly the right to a fair trial, should not be compromised in the process. The court emphasized that these courts were not meant to replace the civilian judiciary but were a temporary measure in response to the specific security threats at the time. In its decision, the court also underscored that any trial conducted by a military court should adhere to constitutional safeguards, including the right to appeal and the presumption of innocence. While supporting the 21st Amendment, the court also made it clear that such extraordinary powers were not to be permanent.8

3. Military Court Cases (2015–2019)

Between 2015 and 2019, Pakistan saw an increase in the use of military tribunals to address terrorism-related matters, particularly following the Peshawar school attack. Despite these courts convicting numerous individuals, their decisions and procedures encountered criticism due to concerns about fairness, transparency, and the protection of fundamental rights. The Pakistani judiciary began to review the decisions made by military courts, particularly after the enactment of the 21st Amendment. In 2019, due to significant pressure from civil society and human rights groups, the Supreme Court declared military trials of civilians unconstitutional, marking an important shift in Pakistan's judicial framework. The court recognized that while fighting terrorism is essential, it must not infringe upon the constitutionally guaranteed rights of individuals, particularly their right to a fair trial. This choice underscored the importance of a civilian-led legal system, operating independently of military influence, to uphold the integrity of Pakistan’s democratic institutions.⁹

Although the court recognized the difficulties presented by terrorism, it strongly maintained that military courts should be a last option and reserved solely for particular national security threats.

Recent Trails in Military Courts: The May 9, 2023 Protests

What Happened?

Following the arrest of former Prime Minister Imran Khan, nationwide protests turned violent in Pakistan. Protesters confronted security personnel, resulting in assaults on military facilities. In reply, the government cited the Pakistan Army Act of 1952, instructing those individuals charged with participation in these violent acts be prosecuted in military tribunals. As of November 26, 2024, military courts had convicted 25 people, the majority being followers of Imran Khan's political party, Pakistan Tehreek-e-Insaf (PTI), for their supposed involvement in the riots on May 9th. These convictions stemmed from a procedure in which the military asserted it had reviewed all evidence while guaranteeing that the accused could exercise legal rights, such as the right to appeal.

Government’s Argument

The government has justified the employment of military courts for these proceedings, claiming that assaults on military assets are within the authority of military courts. Due to the nature of the purported crimes, which entailed attacks on military installations, the government contends that these cases ought to be addressed through the dedicated military legal system, which is designed to handle issues related to national security. Defence Minister Khawaja Asif emphasized that military courts are essential for upholding order and safety, particularly in incidents related to assaults on military facilities.10

Role of the Supreme Court

The validity of these military trials has been a topic of significant legal examination. Petitions opposing the trials have been submitted, referencing breaches of essential rights, especially:

• Article 10-A: Right to fair trial, ensuring that every person has access to a clear and unbiased judicial procedure.

• Article 25: Equality under the law, ensuring that individuals are not judged by varying standards based on the type of their alleged crime.

Nonetheless, in December 2023, the Supreme Court provisionally permitted military courts to move forward with the trials of civilians charged in the May 9th riots, while awaiting the outcome of current legal disputes. This choice overturned the previous ruling, putting the declaration of unconstitutionality on hold to permit the trials to proceed.

By November 2024, 25 civilians received sentences, with prison durations varying from two to ten years. The defendants maintain the right to appeal, allowing them to contest the verdicts. Furthermore, it has been reported that approximately 85 civilians have been in military detention since May 2023, and additional sentences are anticipated to be revealed after the completion of due process.

The continued employment of military courts is not unprecedented, as Pakistan created military courts in 2015 to address terrorism-related cases. These courts continued to function until 2019, during which time they found more than 600 people guilty, with some receiving the death sentence. Nevertheless, the choice to prosecute civilians for events such as those on May 9, 2023, has sparked renewed discussions regarding the equilibrium between national security and personal rights.

Judicial Perspective in PLD 2024 Supreme Court 337

The Supreme Court ruling in PLD 2024 Supreme Court 337 thoroughly evaluated the matter, weighing national security against constitutional principles:

Constitutional Principles:

The court highlighted that civilian authority should be the norm, with military tribunals acting as a rare exception. Basic rights, especially Article 10-A (Right to a Fair Trial), should not be undermined, guaranteeing that civilian courts serve as the main route for justice.

Temporary Quality: Military tribunals ought to be provisional, consistent with their original rationale during discussions on the 21st Amendment. Their application ought to be restricted to particular circumstances, especially during national security emergencies, and should not evolve into a lasting aspect of the legal system.

Judicial Overview: The court emphasized the significance of judicial review to guarantee equity and openness in military trials. This oversight guarantees that military courts comply with constitutional norms and safeguards against possible power abuses.

Suggestions for Reform: The Court suggested enhancing civilian judicial systems to lessen dependence on military tribunals. This involves enhancing witness protection programs and establishing expedited case management systems to boost the efficiency and safety of civilian trials.

International Views on Military Courts

• Legal and Political Warnings

Legal experts and political analysts have noted the effects of military trials on Pakistan's overall judicial system. One major worry is the possible effect on civil-military relations and the view of judicial independence. The participation of military courts in civilian issues might raise worries regarding the separation of powers and the operation of the civilian judicial system. Experts emphasize that although national security is essential, it is vital to guarantee that the civilian judicial system stays strong, transparent, and trustworthy to the public to uphold its legitimacy.

• Statement of the UK Government

The UK government has shared its viewpoint regarding the utilization of military courts in Pakistan, especially in relation to cases concerning civilians. In its declaration, the UK underscored that although it recognizes Pakistan's security issues, it holds the view that citizens ought to face trial in civilian courts, where due process can be guaranteed under the supervision of an impartial judiciary. The UK government stated its dedication to assisting Pakistan in enhancing its legal system and ensuring that justice and fairness principles are maintained, including the right to a fair trial.¹¹

• The European Union

The European Union has likewise indicated its desire to guarantee that trials, particularly those that include civilians, are carried out in line with international norms. A representative for the EU emphasized the significance of upholding the rule of law and guaranteeing that trials honor the rights of the accused. The EU urges Pakistan to keep reinforcing its judicial system and to emphasize the use of civilian courts for cases that involve civilians. The EU's stance is in harmony with wider global expectations concerning due process and the necessity for a just and open legal procedure.12

The application of military tribunals to adjudicate civilian cases is a complicated matter that aims to reconcile national security priorities with the safeguarding of human rights. Although these courts are frequently viewed as essential for tackling security threats during crises, they generate considerable worries regarding trial fairness and the possible undermining of civil liberties.

The Supreme Court's ruling on the cases from May 9, 2023, will be crucial. It will decide if Pakistan maintains its dependence on military courts or enhances its civilian judicial system. The decision will establish an important precedent for the future of civilian leadership and the safeguarding of constitutional rights.

Global entities, including Amnesty International, alongside governments like the European Union and the United Kingdom, have raised worries regarding military tribunals. They highlight the necessity for Pakistan to harmonize its legal frameworks with global human rights norms, guaranteeing justice while tackling national security challenges.

The prosecution of civilians in military tribunals goes beyond a legal matter—it serves as a measure of Pakistan’s dedication to justice, equity, and constitutional democracy. Though military courts might provide an immediate fix, enduring stability relies on reinforcing civilian judicial frameworks.