On 9th May 2023, Pakistan witnessed nationwide demonstrations that resulted in riots causing damage to military installations and monuments. In response, the government arrested thousands of individuals including those from PTI and Pakistan witnessed an era of oppressive state policies most notable of which were illegal arrests and crackdown on free speech. On the 15th of May 2023, the Core Commander Conference decided that the perpetrators were to be tried in military courts which was endorsed by the National Security Council on the 16th of May 2023, the Federal Cabinet on the 19th of May, and the National Assembly on the 22nd of May. Ironically the very government that claimed itself as the guardian of democracy has fought tooth to nail in defence of military trials for civilians as the legal fraternity along with human rights organisations brought the matter to the purview of the Supreme Court.
The Honourable Court, in a 4-1 decision, on 23rd of October 2023 announced that trials of civilians by military courts were illegal. The court also struck down the instruments, Sections 2(1) (d) and 59(4) of the Pakistan Army Act, through which civilians were brought to military courts and eventually laid to rest the infamous F.B Ali Doctrine, a legal precedent formed in 1975 based on the aforementioned instruments. An intra-court was filed by the government and a 6-member bench was formed with the said bench suspending the earlier ruling through a 5-1 ruling thus allowing military courts to resume their trial of civilians as the appeal continues.
Historically the stance of the judiciary has been contradictory concerning civilian trials in military courts. In Liaquat Hussain v. Federation of Pakistan (1999), the Supreme Court categorically declared the establishment of military courts for civilians unconstitutional. The ruling emphasised that such practices violated fundamental rights and the separation of powers, a foundational principle of constitutional democracy. Yet in District Bar Association (Rawalpindi) v. Federation of Pakistan (2015), the Court upheld the 21st Amendment by a slim majority. While the judgment acknowledged the extraordinary circumstances posed by terrorism, it also raised concerns about the erosion of constitutional safeguards.
This contradictory behaviour of the Supreme Court is not due to the growth of Constitutional thought since such an evolution builds and improves on precedent & legal theories presented but is the poisonous effect of Abusive Constitutionalism. David Landau, who coined the term, referred to the strategic use of Constitutional mechanisms to undermine democratic values and fundamental rights under the illusion of legality thus constitutionalising the unconstitutional acts of the state. It explains how authoritarian regimes exploit constitutional reforms to consolidate power and weaken accountability structures. Pakistan’s judicial history is ripe with this behaviour and Kim Lane Scheppele, whilst building on the works of Landau presented autocratic legalism where frameworks were designed and interpreted to blur the lines between legality and illegitimacy. Legal frameworks such as Fundamental Rights or their relationship to military courts are interpreted by Superior Courts in such a manner that the courts declare unconstitutional acts as legal actions and this is exactly what the honourable courts of Pakistan have done. The democratic government of Pakistan is fighting in the courts arguing for civilians to be tried in a Military Court and the Judicature allowed that to happen. If the people of Pakistan feel abandoned, then they have every right to feel so.
The harm brought forth by Military Courts is not constitutional but psychological as it devastates the lives of ordinary citizens as they or their loved ones may face trial in such courts where they may face fear, helplessness and a complete lack of transparency in a court where anything but justice prevails
This repeated surrender has expanded the constitutional crisis in Pakistan leading to the erosion of constitutional doctrines. The Basic Doctrine wherein it is stated that constitutional amendments cannot contravene the basic structure of the constitution and must adhere to those principles such as Fundamental Rights, Rule of Law, and Judicial Independence. The doctrine of Separation of Power declares that the executive cannot be a judge of its own decisions. A Military Court is formed on the same principle where the executive prosecutes an individual who is represented by an individual of the executive and adjudged by the executive. It further causes a democratic decline as constant abuse of the constitutional framework leads to a gradual and systematic weakening of democratic institutions, which often goes unnoticed until it is too late.
The senior counsel representing the Ministry of Defense, Khawaja Harris has argued on the constitutional nature of the Military Courts which brings an interesting aspect to the case. His argument is based on Legal Positivism which emphasises adherence to the law as it is written, regardless of its moral content. Yet it is there for the Courts to witness that due to such approaches, the Judicature has lost the faith of the people and its domain in the Separation of Power has regressed. The Supreme Court must adjudge this matter with a broader understanding of the Rule of Law which challenges the positivist perspective wherein it will require the law to be just, transparent, and equally applicable to all since military courts contravene the Fundamental Rights enshrined in the Constitution. Even if we argue in the context of the exceptions in Article 8 of the Constitution which exempt the laws relating to the Armed Forces from the scrutiny of Fundamental Rights, then we cannot forget that exceptions, especially those limiting fundamental rights, are to be interpreted in the strictest of manners.
To declare Military Courts to be exempt of Fundamental Rights is an inherently unconstitutional argument and the Supreme Court must recognise this and declare that any framework that undermines substantive justice, cannot be allowed. Continuing on this perspective, the Supreme Court of Pakistan must also realise that they are empowered and obligated to interpret legal provisions in light of their moral and constitutional context. It is a perfectly valid argument that even if the Military Courts are constitutional, they violate the broader principles of justice, fairness, and equality. The honourable judges can even draw on the concept of justice presented by John Rawls that any law and institution that systematically disadvantages a segment of the population, such as civilians being tried in military courts, cannot be considered Just.
Furthermore, Pakistan’s use of Military Courts for civilian trials placed it in an embarrassing situation as it contradicts its international legal commitments under the International Covenant on Civil and Political Rights (ICCPR). Article 14 of the ICCPR explicitly guarantees the right to a fair trial by an independent and impartial tribunal, a standard that military courts fail to meet. As the government of Pakistan continues to defend Military Courts and the Supreme Court delays any resolution, the International standing of the country suffers. This erosion of credibility undermines Pakistan’s image as a law-abiding state and weakens its moral authority to advocate for oppressed peoples, such as the Palestinians and Kashmiris, whose struggles against unjust trials and human rights violations, it has consistently championed. If the honourable courts and the government continue this abject surrender then this contradiction risks isolating Pakistan on the global stage, diminishing its influence and legitimacy in international matters.
There can be no doubt that the honourable bench of the Supreme Court has been presented with an opportunity. It has the tools to control the chaotic tide of Abusive Constitutionalism that has gripped this country. The honoured bench must act decisively and uphold the Jawad Khwaja Judgment of 23rd October. By doing so the Courts will not only declare the supremacy of law ensuring justice is equal for all but will also begin the critical process of restoring the people’s trust in the Judiciary, a trust that has been eroded by years of Abusive Constitutionalism and perceived partiality. The harm brought forth by Military Courts is not constitutional but psychological as it devastates the lives of ordinary citizens as they or their loved ones may face trial in such courts where they may face fear, helplessness and a complete lack of transparency in a court where anything but justice prevails. These courts have turned the citizens of Pakistan into faceless numbers, stripping them of their fundamental rights and dignity. The Supreme Court of Pakistan must rise above the pressures of the moment and declare unequivocally, that no framework, however convenient for the state, can stand if it denies justice, fairness, and equality. This is not just about upholding the Constitution; it is about protecting the people it was written to serve. Failure to do so risks pushing Pakistan further into the chasm of authoritarianism.