The establishment of military courts in Pakistan for civilian trials is not a novel concept but dates back to even prior than Ayub Khan’s regime. Beginning since the era of Liaqat Ali Khan, the legacy continues with disruptions time to time. Military courts in Pakistan have been established at various points in the country’s history, often during times of political turmoil or security challenges. The establishment of military courts has been a contentious issue in Pakistan recently, with concerns about the impact on civil liberties and due process of fair trial. The trial of civilians in military courts is an extra-ordinary measure which rests on the reasons of necessity, emergency and restoration of public order.

Military courts in Pakistan are established on the basis of the Pakistan Army Act, established in 1952, serves as the legal framework for the trial of military personnel according to Army’s own legal code. Likewise, the Official Secrets Act, a remnant of the colonial era, is employed to deal with cases of unauthorized disclosure of information and espionage. The primary concern lies in the fact that military trials lack the necessary safeguards and transparency, thereby exposing defendants to the risk of potential miscarriages of justice while on the other hand it is an extra-ordinary step for speedy justice which we as a nation urge for.

The trend of trying civilians in military courts in Pakistan started during the time of Liaqat Ali khan but those were not formal military courts for civilians however, the treatment and process was similar kind as the proceedings were held in secrecy and accused were not granted the right to appeal.

First in the row was Rawalpindi conspiracy case in which 11 military personnels and several civilians were handed over to military courts. The accused were charged for overthrowing the government of Liaqat Ali Khan and the then military leadership. Moreover, they were dissatisfied with the dominance of British in Pak Army, the corrupt elite force and growing tilt toward the U.S. This included charges on our famous poet Faiz Ahmad Faiz. It was the country’s first instance of a military court prototype. All procedures were held in private, and witnesses were told not to expose any information in public. The tribunal’s secrecy was so intense that the case record is still inaccessible.

Formal military courts in Pakistan installed during military coups in accordance with Section 2 of the Pakistan Army Act, 1952. The rules of evidence in the Pakistan Army Act are the same as those observed by the civilian courts whereas it lacked the right to appeal by defendant and fair trial.

The first formal military court was established during Ayub Khan’s tenure, the commander-in-chief of Pakistan Army in 1953, to exterminate those involved in riots against Ahmadiyya community in Lahore. It included two famous religious leaders Maulana Modoodi and Abdus Sattar Niazi, heads of Jamat e Islami party and Jamiat Ulema e Islam party, respectively.  When he took presidency oath, he tried non-military personnel or civilians especially political opponents and dissidents such as Nawab Akbar Khan Bugti was given death sentence by Field Marshal on charges of murder of his uncle Haybat Khan, however later on his penalty was commuted.

The next episode of military courts was run during General Yahya Khan regime in which he tried many of the members of political parties including Pakistan People’s Party, Awami National Party, Awami League etc. However, in the aftermath of separation of East Wing of Pakistan, Justice Hamood-ur-Rehman was tasked to carve out reasons for separation and produced a report. It was basically a report on political-military intervention and failures on their part. The report also revealed the involvement of military tribunals in stifling dissent, punishing political opponents, and breaching the rule of law and human rights. As a result of his report’s recommendations, the military courts were dissolved.

In 1977, the democratic leader took some dictatorial pathways and formed ‘Summary Military Courts’ to restore law and order, which had been interrupted by the opposition’s rising unrest over charges of election rigging in Sindh and Punjab. By using Article 245, which allows the civilian administration to request military assistance in governance, the government amended the Army Act 1952, further denying defendants the right to appeal in the high courts. The move of the government was challenged in the high courts of Sindh and Punjab, which ruled that it was unconstitutional.

During General Zia-ul-Haq’s reign in 1979, he altered the constitution through the 2nd Amendment; established military tribunals, and permitted trials under Martial Law Regulations. These courts likewise ruled that high courts had no authority, and over a hundred military courts were constituted. These decisions of courts were not subject to scrutiny by civil courts. Besides that, under the 12th constitutional amendment, special courts were formed in Pakistan in 1991 to trial civilians for terrorism-related offenses. These tribunals, staffed by judges who lacked legal training, had the authority to overturn the jurisdiction of civilian courts. The special courts were a more moderate form of military tribunals designed to speed up cases.

In the aftermath of APS Peshawar attack 2014, in January 2015, the Pakistani Parliament passed the 21st Amendment Act and the Pakistan Army (Amendment) Act. The 21st Constitutional Amendment expanded military court jurisdiction to try civilians for terrorism-related offenses. These were established under sunset clause and abolished by 2019 and the recent decision passed by SC where a bench of five judges strike down the trial of accused civilians in military courts, involved in 9 and 10 May violence act, is actually in confirmation to this.

All dictators and even civil leaders who were fond of dictatorship have had established military courts. Apparently, it was considered to be established under security concerns however, it is believed that it was mainly for the reason to restrict dissent against incumbent administration or army leadership or to enact vengeance against political opponents. When we explore the history of military courts and examine the periods during which they were established, it becomes clear why there is intense resistance to their continued existence. This opposition stems from their suspicious track record about their fairness and effectiveness, their lack of transparency and due respect for a proper legal process.