With the sun of 2024 having scattered the last of its rays on Earth, it feels like freedom, independence and justice will soon be engulfed by darkness in Pakistan. Today, we find ourselves mired in a troubling quagmire of lawlessness and a hogtied judicial system. On Dec. 21, military courts in Pakistan sentenced 25 civilians out of 85 detained in military custody for their alleged involvement in attacks on military installations. A week later, the fates of 60 more detainees was decided. These sentences come in the wake of the arrest of former Prime Minister Imran Khan on May 9, 2023, from Islamabad High Court premises and included punishments ranging from 2 to 10 years of rigorous imprisonment. Notably, one of those sentenced is Imran Khan’s nephew, Hassan Khan Niazi, a lawyer and human rights activist.
The background of the apex court’s protection of these punishments is that in response to the riots that sparked on May 9 2023, it was announced by the military and government that those involved in the attacks would be tried under the provisions of the Pakistan Army Act 1952 and the Official Secrets Act of 1923. This decision prompted multiple petitions to the Supreme Court under Article 184(3) of the Constitution, challenging the federal government’s choice to subject civilians to military trials.
On Oct. 23, 2023, the Supreme Court of Pakistan rendered a landmark decision in the case Jawad S. Khawaja and others v. Federation of Pakistan (PLD 2024 SC 337). The Court unanimously struck down ongoing military trials of civilians, declaring them ultra vires to the Constitution of the Islamic Republic of Pakistan, 1973. This ruling is significant as it reinforces the notion that the Constitution does not permit the court-martial of civilians. The judgement was challenged by federal and provincial caretaker governments before a larger bench in the first appeal of its kind under the newly passed Practice and Procedure Act, of 2023. The new bench was headed by Justice Sardar Tariq Masood, whose inclusion was objected to as he had opposed the same petitions earlier. On Dec. 13, 2023, the new bench suspended the earlier ruling by a 5–1 majority, stating that the trials of civilians would continue in military courts.
The Supreme Court (SC) then provisionally permitted military courts to issue their reserved decisions on the trials of civilians in March 2024. This matter was addressed during intra-court appeals by a six-member Supreme Court bench led by Justice Aminuddin Khan, the head of the constitutional bench, challenging the trial of civilians in military courts. The announcement of these reserved judgements conveyed through an Inter-Services Public Relations (ISPR) press release and press talk from ISPR director Lt Gen. Ahmed Sharif has raised serious concerns among lawyers, opposition members, the public, and international human rights organizations. They argue that these sentences violate the fundamental rights of citizens and contravene various international agreements to which Pakistan is a signatory.
Concerns have also been raised regarding the fairness of the military trials. A lawyer named Shafqat Awan, who represented PTI protestors in the Pakistan Air Force Base Mianwali attack, stated that a judge had dismissed a related case due to false evidence. Despite being released by the trial court, two of these individuals were subsequently sentenced in military courts. This raises questions about how procedural fairness can be ensured. Moreover, it appears that different individuals are subjected to different judicial processes; some are tried under anti-terrorism laws while others face military courts under the Army Act of 1952 and the Official Secrets Act. It is unclear how serious offences like attacking military installations fall under the Official Secrets Act, which is primarily intended to address espionage and the unauthorized disclosure of classified information, as previously came under discussion during the Cypher Case of former Prime Minister Imran Khan.
The Pakistan Tehreek-e-Insaf (PTI) party has actively criticized these developments, demanding an independent judicial inquiry and emphasizing the necessity of fair trials. They contend that military courts are incompatible with democratic principles. The international community has also weighed in on these developments. Both the United States and the United Kingdom expressed their deep concerns. The UK’s Foreign, Commonwealth and Development Office noted that trying civilians in military courts “lacks transparency, independent scrutiny, and undermines the right to a fair trial.” Similarly, the European Union criticized the sentences as “inconsistent with the obligations Pakistan has undertaken under the International Covenant on Civil and Political Rights (ICCPR).” The EU strongly emphasized Pakistan’s beneficiary status under the Generalized Scheme of Preferences Plus (GSP+), which permits duty-free access for Pakistani exports to European markets. This mention was viewed as a cautionary note, suggesting that failing to uphold international human rights standards could put this advantageous status at risk.
With 2024 having wrapped, so have the military courts concluded the cases of May 9. Moving ahead to 2025 with the hope that justice will no longer be shrouded in the shadows, and when the ice melts and the blurry vision is cleared, only civilian courts in Pakistan will be empowered to adjudicate upon the matters of civilians under the Pakistan Penal Code, 1860, and Code of Criminal Procedure, 1908 dealing with the chapters relevant to the army.
Noor Ul Huda is a JURIST staff correspondent in Pakistan and a recent graduate of Punjab University Law College. She files this dispatch from Lahore.
