By Usman Ahmed

The trial of civilians by military courts has long been a contentious issue across continents, drawing criticism for undermining the principles of justice and constitutional governance. Military courts are often presented as a solution to extraordinary circumstances. A necessary response to crises deemed too urgent, for which ordinary courts are supposedly too slow, too weak and too ill-equipped to handle. Subjecting civilians to military jurisdiction–swift justice, they call it. They warn that justice delayed is justice denied; we caution that justice hurried is justice buried. In Pakistan, military courts were empowered to try civilians following the 2014 Peshawar school terror attack. General (Retired) Hamid Gul, former Director-General of Pakistan’s Inter-Services Intelligence (ISI), supported the expansion of military jurisdiction over civilians and claimed to PIQUE MAGAZINE that military courts are a demand of time and justice. He argued that civilian judges fold under threats from terrorists, while fearless army officers thrive on danger. One might wonder, first, who is accountable for the deteriorating security situation in the country, where terrorists can openly threaten judges without consequence? Secondly, what about the Constitution, the document that promises equality before the law and guarantees the right to a fair trial? It still exists, of course, but under the shadow of barrack-room jurisprudence, it seems more like a suggestion than a binding contract.

Imagine being whisked away, not to a regular courtroom, but to a military court. Where judges are not independent arbiters but members of the armed forces, trained to follow orders, not question them. No open trial, no transparent process, just a room filled with uniforms, speaking a language of orders, not justice. No access to a lawyer of your choice. Sometimes, no knowledge of the charges framed until moments before the trial begins. And let’s not forget the confessions, many of which are extracted under pressure, behind closed doors, far from the eyes of any watchdog. Evidence? It might be classified or barely credible. Appeals? They’re often futile. Justice? too slow; let’s speed up with expedience. Rights? Better left as rituals. Rule of law? Forget that; rule of force works fine. Fair trials? Fear trials are far more efficient. The accused often face limited access to legal counsel, restricted rights of appeal, and an opaque evidentiary process. A military court is fundamentally different from a civilian court because, in a military court, the gun overpowers the gavel. Its purpose is not to ensure justice, but to maintain control. When a civilian walks into such a courtroom, they are no longer a citizen with rights but a case file to be processed.

Legal history is replete with emphasis on the importance of civilian judicial systems in upholding the rule of law. During the American Civil War, Lambdin P. Milligan, a civilian in Indiana, was arrested, tried, and sentenced to death by a military tribunal on charges of conspiracy. The case of Milligan reached the U.S. Supreme Court, which ruled in 1866 that the trial of civilians by military courts was unconstitutional when civilian courts were operational. The Ex parte Milligan, 71 U.S. 2 (1866), case underscored a fundamental principle: Civilian courts must remain the primary guardians of individual rights, even during times of war or national emergency. The U.S. Supreme Court’s reasoning rested on the inviolability of constitutional safeguards, such as the right to a fair trial, which cannot be overridden by the imposition of martial law in areas where civilian governance exists. The U.S. Supreme Court held that it would not passively approve opinions which, although not deliberately intended, seem to weaken the constitutional powers of the government. The principles established in Ex parte Milligan remain profoundly relevant in the contemporary context, especially in Pakistan, where the military court system has been used to try civilians accused of terrorism or anti-state activities.

Military courts, by their nature, lack the transparency and procedural rigor required for fair trials. The experience of other countries also provides valuable lessons on the dangers of military trials for civilians. Bootstrapped justice often comes at the expense of fairness, transparency, and constitutional rights, which is detrimental to democracy and the social contract. The uncomfortable truth: Military courts don’t just operate outside the law; they undermine it. The fundamental question arises: Why should civilians be denied access to the protections and procedural guarantees enshrined in the Constitution? Why not address the systemic issues that plague the civilian judicial system. Rather than bypassing civilian courts, the focus should be on strengthening their capacity to handle complex cases, including those involving terrorism. Specialized civilian courts, equipped with adequate resources, trained personnel, and security measures, can provide a more effective and constitutionally sound alternative to military courts reinforcing public confidence in the rule of law. Countries that have prioritized the strengthening of civilian judicial systems have been more successful in upholding the rule of law and protecting individual rights. We must recognize, without compromise, that rights cannot be suspended in the name of convenience or fear.

Kulbhushan Jadhav, an alleged spy for India’s Research and Analysis Wing (RAW), was arrested in Pakistan in March, 2016, and was sentenced to death by a military court a year later. The International Court of Justice (ICJ) ruled in 2019, that Pakistan violated its obligations under the Vienna Convention on Consular Relations, 1963, by denying Jadhav access to consular services and a fair trial. The ICJ’s judgment underscored the universality of due process rights, emphasizing that even individuals accused of espionage are entitled to legal representation and a transparent judicial process. Pakistan’s compliance with this ruling highlights its recognition of international norms, raising an inevitable question: If an enemy spy can be afforded such protections, why not extend the same rights to its own citizens? In 2020, a division bench of the Peshawar High Court, Peshawar, set aside more than 190 convictions by military courts. The bench held that the convictions were made despite a lack of evidence of the accused’s involvement in terrorism and were based on malice in both law and facts. Additionally, the bench observed that the accused were not provided counsel of their choice, and their confessional statements were recorded while they were held incommunicado at Internment Centres for periods ranging from months to years.

The use of military courts to try civilians undermines the separation of powers doctrine, a cornerstone of democratic governance. The Constitution of Islamic Republic of Pakistan, 1973, explicitly mandates the separation of judiciary from the executive, and any failure to uphold this principle would constitute a violation of Article 175 of the Constitution of the Islamic Republic of Pakistan, 1973. By extending military jurisdiction over civilian matters, the state risks normalizing the military's encroachment into areas traditionally reserved for civilian institutions. This sets a dangerous precedent, weakening democratic institutions and eroding public trust in the judiciary. History demonstrates the dangers of granting unchecked powers to military courts. The use of such courts to try civilians often leads to suppression of political dissent, targeting of minority groups, consolidation of authoritarian rule and erosion of civil liberties. The perception of military courts as instruments of state repression undermines social cohesion and weakens the social contract between the state and its citizens.

The Constitution of the Islamic Republic of Pakistan, 1973, guarantees fundamental rights and protections for every citizen, aiming to uphold justice and equality under the law. Article 4 ensures individuals are treated in accordance with the law and protects their life, liberty, and property. Article 5 emphasizes citizens' duty of loyalty to the state and obedience to the Constitution. Article 8 declares any law inconsistent with fundamental rights as void. Article 9 protects individuals from being deprived of life or liberty except in accordance with the law. Article 10 offers safeguards against arbitrary arrest and detention, including the right to legal counsel and timely presentation before a magistrate. Article 10-A guarantees the right to a fair trial and due process. Article 13 prohibits double punishment and self-incrimination. Article 14 protects the dignity of individuals and their privacy, while forbidding torture for evidence extraction. Lastly, Article 25 ensures equality before the law, prohibiting discrimination and allowing special protections for women and children. The military courts, with their inherent biases and lack of public accountability, fall short of these standards.

Military courts in Pakistan operate outside the Constitutional framework of civilian governance, prosecuting citizens without due process. Individuals are detained without proper legal safeguards, including the timely presentation before a magistrate and the denial of their right to legal counsel. Furthermore, military courts lack public transparency, and accused individuals are subjected to coercive methods, often leading to forced confessions. Military court trials are a flagrant disregard for Constitutional protections. Military court trials of civilians in Pakistan, also raise concerns about the arbitrary application of military jurisdiction, which can be influenced by political considerations or other extrajudicial factors. It is pertinent to note that, in 2023, a five-member bench of the Supreme Court of Pakistan unanimously ruled that civilians involved in the events of May 9, 2023, must be tried in criminal courts of competent jurisdiction established under ordinary or special laws, declaring military court trials unconstitutional. However, this decision was later challenged by the caretaker government, and the Supreme Court, in a 5-1 majority decision, suspended the enforcement of the 2023 judgment until the final verdict.

Military court trials of civilians in Pakistan bring us face to face with Lord Atkin's powerful dissent in Liversidge v Anderson [1942] AC 206, a landmark United Kingdom administrative law case. The case involved construction of a Defense Regulation which had the effect of giving an absolute and uncontrolled power of imprisonment to the Home Secretary. Lord Atkin criticized the majority for abdicating their responsibility to investigate and control the executive, accusing them of being “more executive-minded than the executive.” He protested against the strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the Home Secretary, and famously asserted that “In England, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law.” The lesson is clear:  The concept of justice should never be sacrificed on the altar of national security.

The Article 14 of the International Covenant on Civil and Political Rights (ICCPR), ratified by Pakistan on June 23, 2010, guarantees the right to a fair trial, including the presumption of innocence, legal representation, and protection against double jeopardy as well as the right to a public hearing and equal treatment before the law, with specific protections for juveniles and victims of wrongful convictions. The UN Human Rights Committee (UNHRC), tasked with monitoring compliance with the ICCPR, indicated that the trial of civilians in military or special courts may undermine the equitable, impartial and independent administration of justice. In 2024, the International Commission of Jurists (ICJ) raised concerns about the incompatibility of military court trials of civilians with the right to a fair trial. The UNHRC recommended that Pakistan should abrogate the jurisdiction of military courts over civilians and release on bail all civilians detained under military courts jurisdiction. Dinushika Dissanayake, Deputy Regional Director for South Asia, Amnesty International, also criticized military court trials for civilians as contrary to international law, describing them as an intimidation tactic, designed to crack down on dissent by exercising fear of an institution that has never been held to account for its overreach. The European Union (EU) has similarly expressed concern, considering military court verdicts inconsistent with Pakistan’s obligations under the ICCPR.

The message is timeless. Whether it is 1866 or today, whether in Pakistan or anywhere else, military courts are an affront to justice and the rule of law. The world is unequivocally reminded that even during times of war and crisis, the constitution does not take a backseat. Constitutions are not mere pieces of paper, they are promises. Promises that the will of the people, not the power, will prevail. And those promises should never be broken, no matter how extraordinary the circumstances. The concept of justice cannot be brutalized and terrorized in the name of fighting terrorism, militancy and insurgency. In conclusion, the trial of civilians by military courts is a disaster for justice, democracy, and human rights. It undermines the rule of law, erodes public confidence in the judiciary, and weakens the social fabric of the nation. Pakistan can chart a path toward a more just and equitable system of governance by a steadfast commitment to the rule of law, the protection of individual rights, and the strengthening of civilian judicial institutions. Only then can the nation ensure justice for all and uphold the values that form the bedrock of a democratic society regardless of the challenges.

Usman Ahmed is a lawyer based in Islamabad-Lahore, Pakistan, dedicated to upholding the Constitution and human rights, advocating for justice and fairness.

Usman.ahmed.esq@gmail.com