Military Courts case
Jawwad S. Khawaja v. Federation of Pakistan, , is a landmark decision by the Supreme Court of Pakistan in which it was held that the Constitution of Pakistan does not allow for the court-martial of civilians.
The case concerned the constitutionality of military courts set up to try protestors accused of involvement in the May 9 riots that ensued from the arrest of former prime minister Imran Khan. The Supreme Court was petitioned in its original jurisdiction by lawyer Aitzaz Ahsan, retired chief justice of Pakistan Jawwad S. Khawaja, and the parents of the accused; arguments before the Court proceeded from June to October 2023.
On 23 October 2023, the Court issued a unanimous decision striking down ongoing trials by military courts and, by a majority of 4-1, held that § 2 of the Pakistan Army Act, 1952 enabling such trials was unconstitutional. It also held that the accused 103 persons would be tried by civilian courts under ordinary criminal law. The decision was celebrated by legal experts, human rights groups, and civil society as 'brave' and 'truly historic'.
The judgment was challenged by federal and provincial caretaker governments before a larger bench, in the first appeal of its kind under the newly passed Practice and Procedure Act, 2023. The formation of the appellate bench by Chief Justice Qazi Faez Isa was controversial, and the inclusion of the head of the bench, Justice Sardar Tariq Masood, objected to for having opposed the same petitions earlier. The new bench suspended the ruling, stating that the trials of civilians would continue in military courts.
On 8 May 2025, the appellate bench, having since been reconstituted as a Constitutional Bench under the Twenty-Sixth Amendment, overturned Jawwad S. Khawaja by a 5-2 majority, validated the trials, and restored § 2. The reversal was widely denounced by lawyers as a 'judicial surrender'.
Background
History of military trials of civilians in Pakistan
Military courts commenced in independent Pakistan to try religious leaders in the aftermath of the Lahore riots of 1953 and the imposition of city-wide martial law.Ayub-era inclusions and ''F. B. Ali''
The trial of civilians by court martial was formalised in 1967 during the military dictatorship of Ayub Khan, in the form of § 2 and § 59 being incorporated in the Pakistan Army Act, 1952. The provisions were applied shortly thereafter to retired Brigadier F. B. Ali, who was handed a life sentence for attempting to overthrow prime minister Zulfikar Ali Bhutto.When Ali eventually moved the Supreme Court in F. B. Ali v. The State, his appeal was dismissed in 1975 by a 5-member bench headed by chief justice Hamoodur Rahman; the decision would be used to justify the court-martial of civilians in subsequent cases, and formed the subject of extensive judicial discussion in Jawwad S. Khawaja over its value as precedent. Ali was released by the Zia-ul-Haq regime in 1978, after serving five years in prison.
Legal provisions
The Ayub-era inclusions to the Army Act read:- § 2: “persons not otherwise subject to this Act who are accused of seducing or attempting to seduce any person subject to this Act from his duty or allegiance to government, or having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan” can be tried under the secrets act.
- § 59: “Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause of subsection of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act ; and the provisions of this section shall have effect accordingly.”
Twenty-first amendment
Military courts were again instituted by the Nawaz Sharif ministry in the aftermath of the 2014 Peshawar school massacre carried out by the Tehreek-i-Taliban Pakistan, with the aim of dispensing speedy justice to terrorists. The move was enabled by the passage of the 21st Constitutional Amendment in 2015 with a sunset clause of 2 years. In January 2017, at the end of the originally stipulated period, a further amendment was made to the constitution to allow the military courts to function for two more years. That provision of the amendment expired in January 2019 and was not renewed.The courts were subject to widespread procedural criticism: trials were conducted under the Judge Advocate General branch of the Pakistan Army in which the judges and prosecutors were all serving military officers with no formal legal training. The opaqueness of the military justice system was also pointed out by the United Nations and International Commission of Jurists. The proceedings were conducted within military establishments in secrecy and defendants only had the right to appeal the verdict of a military court to a military appellate tribunal, whose decision in turn would be deemed final and beyond challenge in Pakistan's superior courts.
The Twenty-first amendment was challenged in May 2015 by senior lawyers Hamid Khan and Asma Jahangir in District Bar Association v. Federation of Pakistan. However, their petitions were dismissed by a majority of 11 to 6, allowing for military courts to complete two consecutive two-year terms. Among the dissident judges who ruled against the court-martial of civilians was Jawwad S. Khawaja.
History of the case
After Imran Khan's violent arrest by paramilitary Rangers on 9 May 2023 from within the premises of the Islamabad High Court, protests spread across the country. In some instances protestors targeted military installations, including the General Headquarters in Rawalpindi and Corps Commander house at Lahore. Several thousand Pakistan Tehreek-e-Insaf leaders and workers were arrested in response, of which 102 defendants had their cases shifted from anti-terrorism courts to military courts.Petitioners and counsel
This move was subsequently challenged by several petitioners as unconstitutional, including lawyer Aitzaz Ahsan, former chief justice of Pakistan Jawwad S. Khawaja, and the parents of the accused. The counsel for the petitioners included Khawaja Ahmad Hosain and Rida Hosain representing Justice Khawaja, Latif Khosa representing Aitzaz, Uzair Bhandari representing Imran Khan, Salman Akram Raja and Asad Rahim Khan representing the parents, and Faisal Siddiqi representing rights activist Karamat Ali.The counsel for the state was Attorney-General for Pakistan Mansoor Usman Awan, with Khawaja Haris representing the Ministry of Defence.
Hearing the case
Bench composition
Chief Justice Umar Ata Bandial initially formed a 9-member larger bench to hear the case. However, upon the onset of proceedings on 23 June 2022, Justice Qazi Faez Isa "rose" from the bench and stated that he did not "consider the 9-member bench a bench" and left the hearing. He was of the view that the Chief Justice should first decide the matter of Supreme Court Practice and Procedure Bill, 2023 before constituting new benches. He was supported by fellow sitting judge, Tariq Masood, in exiting from the courtroom.On 26 June 2023, Justice Mansoor Ali Shah recused himself from the bench after the Federal Government, represented by Attorney General, Mansoor Awan, raised objection over him being related to one of the petitioners, former Chief Justice of Pakistan, Jawwad S. Khawaja.
The final bench consisted of 6 judges; Chief Justice Umar Ata Bandial, and Justices Ijaz-ul-Ahsan, Munib Akhtar, Yahya Afridi, Mazahar Ali Akbar Naqvi, and Ayesha A. Malik. J. Bandial retired on 17 September 2023 while the hearing of the case was ongoing.
Supreme Court decision
On 23 October 2023, the bench announced a unanimous verdict that called for the trial of May 9 riots suspects to be conducted in ordinary courts. The court further declared Section 2 of the Army Act, which elaborates on persons subject to the Act, to be in violation of the Constitution and “of no legal effect”. The court also declared Section 59 of the Act to be unconstitutional.Reactions
The verdict was widely hailed by lawyers, civil rights activists, and legal experts. Human Rights Commission of Pakistan warmly welcomed the decision, saying in a tweet: “Military courts do not meet the standards of fair trial, nor are such trials likely to be impartial or independent, as the administration of justice warrants.” Pakistan Tehreek-i-Insaf spokesperson Raoof Hassan hailed the judgement saying the order will help transfer cases of their workers from the military courts to the ordinary criminal courts.On 14 November 2023, Senator Dilawar Khan with the support of the pro-establishment, Balochistan Awami Party, passed a resolution against the verdict. The resolution was not part of the daily agenda and was tabled when most of the senate's members were absent from the floor. In the ensuing sessions, on 18 and 22 November, senators protested the hasty passage of the resolution. Senator Mushtaq Ahmad termed it a "drone attack" on the Senate. Senator Raza Rabbani decried the way the resolution was "bulldozed" through the senate with only 12 of the 100 senators present when it was tabled. Chairman of Senate, Sadiq Sanjrani, prevented the tabling of a resolution in support of the verdict, stating that the matter has now become subjudice.
On 18 November 2023, the caretaker government, under Anwarul Haq Kakar, filed an intra-court petition against the verdict. Related appeals were filed by caretaker governments of Khyber Pakhtunkhwa and Baluchistan as well as the defense ministry, under Lieutenant General Anwar Ali Hyder. On 22 November 2023, the caretaker government of Punjab, under Mohsin Naqvi, also challenged the verdict.