The Supreme Court of Pakistan is currently undertaking a significant review of military court procedures concerning civilians tried for their roles during the violent riots of May 9, 2023, following the arrest of former Prime Minister Imran Khan. This review is being conducted by the Constitutional Bench (CB) headed by Justice Aminuddin Khan and includes Justices Jamal Khan Mandokhail and Muhammad Ali Mazhar, among others. This move has brought to light major concerns about the independence and legality of military trials and sparked debates over their adherence to fundamental rights enshrined in the Constitution.
During the hearing on January 30, 2025, Justice Mandokhail emphasized the principle of judicial independence, stating, "the executive cannot play the role of judiciary," reflecting concerns about the role military courts play versus civilian oversight. This comment followed the submission of sealed documents by the Defence Ministry, which outlined the processes followed during these military trials. The judges opted not to retain these documents for review amid worries they could prejudice future appeals, highlighting the precarious balance of accountability and secrecy within military judicial processes.
The controversies surrounding these trials arise primarily from the procedural integrity of how civilians are tried under military law. Advocate Khawaja Haris, representing the Defence Ministry, argued before the bench about the procedures of military courts and stressed the safeguards purportedly instituted to protect the rights of the accused. "The accused were asked if they had any objections to the presiding officer, but none raised any," Haris noted, clarifying the preliminary steps taken before the actual trials commenced.
Many justices echoed concerns about the transparency of these proceedings. Justice Syed Hasan Azhar Rizvi raised the salient point about public access to the trials, stating, "If the military trials of the accused were conducted in great detail, why should the proceedings not be made public…" This question illustrated the tension between national security concerns and the public's right to know, especially when the charges relate to significant criminal acts against military establishments.
The trial processes came under increased scrutiny after military courts sentenced multiple civilians to prison terms ranging from two to ten years for their alleged involvement in the protests and attacks on military installations. The Constitutional Bench's recent inquiries have led to questions about the severity of the May 9 actions compared to past crimes considered under the military judicial system. Justice Rizvi provocatively asked whether the actions taken during the riots were even more severe than infamous past terrorist incidents and demanded references to how perpetrators of former attacks, like those at the Mehran and Kamra bases, had been adjudicated.
This inquiry follows discussions around the constitutionality of trying civilians under military law. Military courts, established under separate legislative frameworks, have come under fire for circumventing the fundamental guarantees set forth by civil courts, namely those under Article 175 of the Constitution. Advocates of military justice argue, as Haris did during this session, "Military courts are formed under a separate law which is recognised…" but such arguments fail to assuage fears among critics of militarized justice systems.
Justice Mandokhail expressed regret over the diminishing trust in judicial independence, stating, "Our country has become so trained..." indicating public skepticism toward dual legal systems. The historical precedence witnessing the government's encroachment on judicial procedures raises alarms over how military courts could function unchecked. He questioned whether presiding officers had true independence, adequate legal experience, or were simply fulfilling orders from higher-ranking officials.
This session not only emphasizes the need for clarity and due process within military trials but also portrays the challenges facing the judiciary concerning public perception and trust. Despite the procedural critiques made by the justices, the Defence Ministry contended the trials upheld the necessary legal standards. Haris highlighted, "All safeguards for a transparent trial had been put in place," though subsequent queries revealed apparent gaps, particularly concerning procedural transfers of cases from anti-terrorism courts to military courts.
While the scrutiny of military court procedures may lead to sweeping reforms, it remains to be seen whether these judicial proceedings will adapt to greater transparency and accountability. The judges have expressed interest in assessing how these proceedings impact public trust and the legitimacy of judicial actions within the military legal framework.
With the hearings set to continue, the outcomes could not only reshape military justice but also redefine the interaction between civilian and military legal systems moving forward. The conversations experienced within the Constitutional Bench illuminate the complex relationship Pakistan holds with notions of justice, security, and the rule of law as the nation navigates its political and social challenges.