In an era of increasingly polarized political tempers and a visibly strained social fabric, the Supreme Court of Pakistan has made a ruling that is as consequential as it is controversial. By restoring the Army Act in its original form and thereby endorsing the court martial of civilians under particular clauses, the apex court has reignited a long-smoldering debate over the delicate boundary between military might and civilian rights. The 5–2 split decision, with Justices Jamal Khan Mandokhel and Naeem Akhtar Afghan dissenting, not only brings into question the interpretation of constitutional principles, but it also raises profound concerns about the very nature of justice in a democratic society.
At the heart of the matter lie the intra-court appeals filed to challenge the legality of military trials for civilians—appeals which gained urgency following the events of 9 May 2023. On that day, following the arrest of former Prime Minister Imran Khan, Pakistan witnessed a series of attacks on military installations. These attacks, viewed by the state as organized acts of anti-state violence, prompted swift and forceful legal responses. The reinstated clauses—2(1)(D)(1), 2(1)(D)(2), and 59(4)—effectively allow civilians to be tried in military courts under particular conditions. But what has been deemed necessary by the state has been interpreted as a constitutional misstep by others, most notably the dissenting judges.
In a restrained yet powerful two-page note, Justices Mandokhel and Afghan articulated what many legal and human rights advocates have argued for years—that military justice cannot, and should not, apply to civilians. Their dissent is anchored in constitutional interpretation, notably Article 175, which establishes the judicial branch as independent of the executive. This independence is not merely symbolic; it is structural and functional, and is meant to serve as a bulwark against authoritarian overreach. For the dissenting judges, this independence is compromised when military tribunals—an executive domain—are allowed to extend their jurisdiction into civilian space.
They also invoke Articles 10-A and 25, cornerstones of Pakistan’s legal architecture that guarantee the right to a fair trial and equal treatment under the law. These are not abstract principles. They speak to the very essence of what it means to be governed under a rule of law. The dissent makes the case, clearly and unapologetically, that the rights of the accused in the wake of the 9 May incidents remain intact regardless of the gravity of the allegations. A fair trial, public scrutiny, and access to civilian legal representation are not privileges—they are rights. And rights, the Constitution insists, are not to be suspended simply because the state feels threatened.
But the majority of the bench disagreed. Their position, though not yet accompanied by a detailed reasoning, appears to follow the state’s argument that extraordinary circumstances—such as organized attacks on military infrastructure—warrant extraordinary legal mechanisms. In this view, military courts are not being used to bypass justice but to ensure it is delivered swiftly and decisively in situations where national security is perceived to be at risk. To temper the implications, the Court has asked the federal government to introduce legislation within 45 days that would allow for appeals against military court verdicts to be heard in civilian High Courts. It is a halfway gesture, an attempt to mollify critics by providing a mechanism of review, while not undoing the controversial reinstatement itself.
Yet, this compromise may prove too thin for those who view the military’s reach into civilian legal matters as a persistent threat to democracy. Military courts, by their nature, are opaque. Proceedings are often held in secrecy, defendants may have limited access to counsel, and verdicts are typically immune from public or media scrutiny. These are not mere procedural defects—they strike at the heart of democratic accountability. Legal analysts and constitutional scholars warn that this ruling could deepen the country’s internal contradictions, particularly in a climate where civilian institutions already operate under immense pressure. The events of 9 May have become a kind of crucible, testing not only the resilience of Pakistan’s political order but the maturity of its constitutional commitment to civilian supremacy.
That the judiciary would choose this moment to legitimize military jurisdiction over civilians will likely be seen, by many, as a troubling retreat from democratic norms. Still, the directive to create a legal avenue for appeal introduces a slim ray of hope. If implemented transparently and robustly, such a measure could at least offer a modicum of judicial oversight over military verdicts. But that is an enormous if. Pakistan’s history is replete with well-intentioned legal reforms that have faltered in execution. Without genuine political will and an unwavering commitment to civilian rights, even the promise of appeal could become another hollow formality. The truth is, Pakistan cannot afford to keep redrawing the line between civilian and military authority each time a crisis unfolds.
Such ad hocism undermines not only the Constitution but also the public’s trust in institutions. If civilians are to be tried under laws devised for soldiers, then the line between state and citizen becomes dangerously blurred. And in that blurring, rights are too easily erased, and justice too easily deferred. The Court’s detailed rationale will shed more light on the thinking that led to this decision. Until then, what remains is a country wrestling with the implications—political, legal, and moral—of a ruling that may well shape the character of its democracy for years to come. For now, Pakistan stands at a crossroads once more, asked to choose between the seduction of order imposed from above and the messy, necessary promise of justice pursued from below.
