In Defence of Democracy: The Pakistani Supreme Court’s Decision Against Military Trials of Civilians

by | Nov 30, 2023

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About Masoom Sanyal and Mahika Suri

Masoom Sanyal and Mahika Suri are 3rd-year students of BA LLB at Gujarat National Law University in Gandhinagar, India. Their interests lie in Human Rights, Constitutional Law and Public International Law. 

The arrest of former Pakistani Prime Minister Imran Khan in May led to a wave of protests by his supporters. The protests took a violent turn and resulted in attacks on army installations, destruction of property of the army, as well as injury and death of many civilians. In response, the Army charged all those arrested in relation to the protest with offences under Section 2(1)(d) and Section 59 (“Civil Offences”) of the Army Act and announced that the proceedings against them would take place in military courts, also known as court martial.

Section 59 of the Army Act makes “civil offences” a punishable offence by a military court. Section 8(3) of the Act defines ‘civil offence’ as an offence, which if committed in Pakistan, would be triable by an ordinary criminal court. The decision of the Army to try civilians in military courts was fully endorsed by the Pakistani Cabinet. The constitutionality of the decision was challenged before the Supreme Court of Pakistan.

The Legality of Military Trials of Civilians: International Law and Constitutional Protection

International Law on the matter of military trials of civilians is not entirely crystallised but is sufficiently clear to indicate that such trials ought to be conducted only in case of extremely serious offences such as espionage. In the case of Castillo Petruzzi v Peru, the Inter-American Court of Human Rights observed that “when a military court takes jurisdiction over a matter that regular courts should hear, the individual’s right to a hearing by a competent, independent and impartial tribunal previously established by law and, a fortiori, his right to due process are violated” (para. 29).

The Article 14 of the International Covenant on Civil and Political Rights (ICCPR) also guarantees a right to “fair and public hearing” by a “competent, independent and impartial tribunal.” Pakistan is a signatory to the ICCPR and has ratified it. According to the International Commission of Jurists, the Human Rights Committee has been of the consistent opinion that Article 14 of the ICCPR should be interpreted as prohibiting the trial of civilians in military courts.

Additionally, the Constitution of Pakistan also provides for an explicit fundamental right to a fair trial, by virtue of Article 10A. Thus, military trials of civilians are not only prohibited under international law but also violate the fundamental right to fair trial guaranteed in the Constitution of Pakistan.

The Ruling

The Court pronounced its verdict responding to the petitions challenging the constitutionality of such trials on 23 October. An important matter dealt with by the ruling involved the competence of the Court to review this issue. Article 245(1) of the Constitution provides that the Armed Forces shall defend Pakistan against external aggression or threat of war, and, “subject to law, act in aid of civil power when called upon to do so.” Clause (2) of the same Article prohibits any direction issued by the Government under 245(1) from being called into question in any Court of Law. This seems to rule out the competence of the Court to examine this issue. However, Article 184(3) vests the Supreme Court with powers to issue any order it deems fit when an issue of public importance concerning fundamental rights is involved. The legal question was whether Article 184(3) overrides the provision of Article 245(2), enabling the Court to examine the challenged decisions.

The verdict of the five judges bench of the Supreme Court held that the decision to conduct military trials of civilians was of “no legal effect.” The Court also declared Section 2(1)(d) and Section 59(4) of the Army Act unconstitutional, which provided for military trials of a person accused of seducing a person or attempting to do so from “allegiance to the government.” It directed that regular criminal courts must conduct the trials. The detailed reasons for the decision are to be provided by the Court at a later date.

The court’s finding is important for two primary reasons: (i) it is a welcome step towards protecting the fundamental human rights of citizens in Pakistan, and (ii) it enables the Court, by virtue of Article 184(3), to judicially review the decisions of the Army and the Federal Government taken under Article 245(1), notwithstanding Article 245(2). It therefore represents a critical development at the juncture of constitutional law and human rights in Pakistan.

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