Picture fair trial: an independent forum, an impartial judge, a detailed judgment, and a substantive right of appeal. Now, picture its absence: court-martials. Trials where guilt is declared without reasons, judgments are whispered behind closed doors, and the right to be heard becomes a privilege to be offered, not a protection to be enforced.

Last year, 103 civilians were on the brink of being court-martialled under a law from the Ayub era. The idea that Imran Khan could be tried under the same framework surfaced repeatedly. But, for a brief moment, there was clarity. A five-member bench of the Supreme Court in Jawwad S.Khawaja v. Federation of Pakistan (PLD 2024 SC 337) declared military trials of civilians unconstitutional. Justice Munib Akhtar (Munib J.), writing for the majority, reminded us that in a constitutional order, rights are not things that vanish in times of unrest. Justice Ayesha Malik (Ayesha J.) added: Court-martials do not meet the standard of a fair trial, and they never can. It was, as the court proclaimed, the language that the Constitution should and did speak.

But it did not take long for that language to be rewritten.

On 7 May 2025, the Supreme Court set aside that decision. A bench of seven judges of the newfound constitutional bench, by majority in Shuhada Forum, Balochistan v. Justice (R) Jawwad S. Khawaja (2025 SCP 165) upheld the legality of military trials for civilians under section 2(1)(d) and 59(4) of the Army Act. The provisions that say if a civilian is accused of certain offences — subversion, incitement, mutiny — they can be made subject to the military justice system. From that moment, the ordinary rules of criminal procedure no longer apply. Instead, the civilian enters a parallel world: closed trials, military judges, no right to a detailed judgment, and no right of appeal to an ordinary court (unless Parliament, in its graciousness, decides to create one).

The simplicity of the process is part of its danger. A label like “subversion” is applied, and the wheels of the chariot churn smoothly. The only question left for a civilian court is one of jurisdiction. If the accused is deemed subject to the Army Act, the civilian courts have to step aside. It cannot test the evidence, cannot examine the charges, cannot ask whether the accused was even rightly brought before the military court in the first place. The assumption, rather than a scrutiny-based finding, is that a court-martial is a court of competent jurisdiction. For civil offences that these civilians subject to the Act commit, a military officer being the “prescribed officer” decides where the case should go, and his decision is subject to appeal before the federal government only. If the process reeks of executive and executive alone, it is because this is just so. The military trial process was devised by the British for bringing discipline among the army. To sit and be tried by their own officers was something that our Constitution also signed off to under Article 8(3), anchored as it was in a long-standing legislative and constitutional history.

But the trial of........

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