Military Courts (Pakistan)

After Imran Khan's arrest on 9 May 2023 from within Islamabad High Court, protests spread across the country.^[9] In some instances protestors targeted military installations, including the General Headquarters (GHQ) in Rawalpindi and Corp Commander house at Lahore.^[10] Several thousand Pakistan Tehreek-e-Insaf leaders and workers were arrested in response, of which 102 defendants had their cases shifted from anti-terrorism courts to military courts.^[11] This decision was strongly opposed by human rights organizations and legal experts.^[12][13]

The use of military courts to try civilians has been the subject of controversy and criticism. Human Rights Watch (HRW) and Amnesty International have urged Pakistan not to prosecute civilians in military courts. They argue that the trial of civilians in military courts is a violation of Pakistan's obligations under international human rights law to ensure the rights of criminals to due process and fair trial.^[14][15] HRW has documented a catalog of human rights abuses stemming from the prosecution of civilians in military courts in Pakistan, including a clear disregard for due process, lack of transparency, coerced confessions, and executions after extremely unfair trials.^[15]

The opaqueness of the military justice system has been criticized, including by the United Nations and International Commission of Jurists.^[16][17] The proceedings are conducted within military establishments in secrecy and defendants only have the right to appeal the verdict of a military court to a military appellate tribunal, whose decision in turn is deemed final and cannot even be challenged in the higher civil courts of Pakistan.^[18]

In the 2015 District Bar Association (Rawalpindi) v Federation of Pakistan case, the question of "unconstitutional constitutional amendments" was put before a 17-member bench of the Supreme Court of Pakistan that challenged specific clauses of the 18th and 21st amendments. Namely, the anti-defection and judicial appointment clauses of the former and the military tribunal cover provided in the latter.^[19]

The court, in a landmark verdict described by legal experts as the most important constitutional law decision in the history of Pakistan, ruled that:^[20][21][22]

1. With a majority of 13 to 04 the Constitution Petitions were held to be maintainable. Thus allowing for judicial review of the amendments with the view being that of the basic structure doctrine. In essence, providing a check on the power of the parliament to amend the constitution.
2. With a majority of 14 to 03 the Constitution Petitions challenging the Eighteenth Amendment were dismissed.
3. With a majority of 11 to 06 the Constitution Petitions challenging the Twenty-first Amendment and the Pakistan Army (Amendment) Act (2015) were dismissed. This allowed for the continuation of the military courts. The 6 dissenting judges, who deemed the military courts as unconstitutional, were Jawwad S. Khawaja, Asif Saeed Khosa, Ejaz Afzal Khan, Ijaz Ahmed Chaudhry, Dost Muhammad Khan, and Qazi Faez Isa.

In October 2023, the Supreme Court of Pakistan invalidated the trial of civilians in military courts.^[23] The court ordered that the accused in the May 2023 violence-related cases be tried under ordinary criminal laws.^[24]