CHAPTER III

3.1 LITERATURE REVIEW

The scholarly discourse surrounding the trial of civilians in Pakistan’s military courts represents
a profound tension between the state's pursuit of national security and the preservation of
constitutional and human rights frameworks. Muhammad Hassan (2023) posits that while trying
civilians in such forums is not a novel concept in Pakistan’s history, the shift observed following
the political unrest of May 2023 has reignited urgent debates regarding the legitimacy of these
proceedings. The announcement of military trials for civilians accused of inciting violence
against armed forces triggered significant backlash from legal experts and human rights
organizations, who argue that these courts are structurally designed for military discipline rather
than the adjudication of regular citizens. This central conflict is further explored through the lens
of the "separation of powers," a democratic principle which mandates that the judiciary should be
the sole branch responsible for judging the populace4. By allowing the executive branch, via the
military, to perform judicial roles, the state effectively violates this fundamental constitutional
trichotomy.

A recurring theme in the literature is the concept of "abusive constitutionalism," a theory defined
by scholar David Landau as the use of legal mechanisms, such as constitutional amendments, to
intentionally weaken democratic structures and bypass individual rights6. Authors such as Mohit
Musaddi (2023) and Ayesha Youssuf Abbasi (2024) apply this theory to the Pakistani context,
specifically citing the 21st and 23rd Amendments as tools used to normalize a parallel justice
system. Scholar Paula R. Newberg argues that such legal maneuvers have fundamentally altered
Pakistan’s constitutional identity, shifting it from a system centered on individual rights to one
that prioritizes national security at the expense of the legal safety of its citizens. This shift is
characterized as an "informal declaration of war" against vague internal enemies, which
ultimately fails to protect the basic sanctity of individual life and due process.

Historical judicial opposition provides a critical backdrop to this debate, most notably the
landmark Liaqat Hussain Case of 1999. In this ruling, Justice Afrasiab Khan declared that
military courts for civilians create a parallel judiciary that is entirely contrary to the system
established by the 1973 Constitution. The Supreme Court’s historical rejection of these systems
emphasizes that such "legal exceptionalism" cannot be justified even under the "doctrine of
necessity" or during times of emergency. Despite this, the literature notes that the state has
frequently relied on this doctrine to provide legal legitimacy to military regimes and their
takeovers, creating a "dominant-subordinate" relationship between the executive and the
judiciary. Dr. Khan Faqir Muhammad Hussain observes that this "marriage of convenience" has
historically weakened the rule of law, as judges often felt compelled to validate military
takeovers to prevent state collapse or preserve their professional positions.

International human rights standards serve as a primary benchmark for evaluating Pakistan's
military justice system, with research consistently finding major failures in compliance with the
Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and
Political Rights (ICCPR). A primary concern raised by the International Commission of Jurists
(ICJ) is the lack of judicial independence. Military judges are active-duty officers who remain
subordinate to their commanders, creating an inherent institutional bias toward state security
rather than impartial adjudication. Furthermore, these judges often lack formal legal training,
compromising their ability to deliver justice according to established legal norms. The secrecy of
proceedings, often conducted "in camera" or in undisclosed locations, further subverts justice by
preventing public, media, and familial oversight. Such "underground trials" deny the accused the
right to a public hearing, which is a cornerstone of fair trial standards.

The procedural failures extend to the limitation of the right to appeal and the erosion of the
presumption of innocence. Unlike the civilian system, which offers robust avenues for appeal,
military court verdicts are largely insulated from review by civilian High Courts or the Supreme
Court. The military’s power to hold suspects indefinitely without formal investigation directly
contradicts the principle that an individual is innocent until proven guilty. Global comparisons
provided in the research show that many democratic nations, such as Germany, have completely
abolished military courts for such purposes, while others, like the United States, restrict military
jurisdiction over civilians to extreme emergencies during wartime. This suggests that Pakistan's
continued reliance on these courts is a departure from international democratic norms.

The literature further explores the "efficiency vs. legitimacy" debate, acknowledging that the
government often presents military courts as a necessary "quick-fix" for a broken civilian justice
system that struggles to convict high-profile terrorists. However, researchers such as Shakeel
Akhtar Thakur and Sana Shakeel (2024) conclude that this is a dangerous trade-off that sacrifices
long-term legal integrity for short-term security goals. The inefficiencies in the civilian system
often termed as broken "teamwork" between police, prosecution, courts, and prisons lead to
weak investigations and low conviction rates. Rather than using military courts as a shortcut, the
consensus among scholars and organizations like the Human Rights Commission of Pakistan
(HRCP) is that the state must focus on proactive judicial reforms. These recommendations
include improving forensic training for police, strengthening prosecution services, and ensuring
the safety of civilian judges and witnesses to allow them to operate without fear of retaliation.

Ultimately, the research concludes that justice cannot be created by circumventing the rules of
the Constitution. The establishment of military courts is viewed as a temporary "band-aid" on
systemic issues that require deep structural "surgery". For democracy to flourish in Pakistan, the
judiciary must assert its autonomy, stop relying on the "doctrine of necessity," and ensure that all
individuals receive trials that adhere to both domestic constitutional protections and international
human rights standards. Strengthening transparent and independent civilian institutions is
presented as the only sustainable path to achieving true security and the rule of law.
3.2 References and Bibliography

Hassan, M. (2023, February 20). Military court trials of civilians in Pakistan.

Abbasi, A. Y. (2024). Legal framework of civilian's trial in the military courts of Pakistan viz-a-viz
international fair trial standards.

Ahmad, H., & Qayum, S. (2021). Civilians trials in military courts in Pakistan vs. the international fair
trial standards on military justice: A critical analysis. Pakistan Journal of Criminology, 13(1-2), 48-59.

Ali, N. (2025). Fair trial rights under military jurisdiction: Constitutional and international perspectives
from Pakistan and the UK. Dalian Maritime University.
[Link]

Hussain, K. F. M. (n.d.). Legitimacy of military regimes and the superior courts in Pakistan.

Imran, M. M., & Makhdoom, F. M. (2024). The military trial of the civilians: The limits of interpretation
and unwritten judicial policy in Pakistan.

International Commission of Jurists. (2015, January 6). Pakistan: ICJ denounces law permitting military
trials of civilians.

Munir, B., & Khan, A. (n.d.). Establishment of military courts in Pakistan and its effects on trichotomy of
powers: International and domestic standards.

Musaddi, M. (2023, July 24). Military courts in Pakistan.

Thakur, S. A., & Shakeel, S. (2024, May 11). Military courts and civilian trials: Due process challenges
in Pakistan's military justice system.

Usman, M., Amjad, S., & Khan, M. I. (2023). Judicial boundaries: Understanding the scope of military
courts in the Pakistani legal framework.

Usman, M., Riaz, N., & Khan, A. (2023, December 3). Reconciling military justice: Assessing Pakistan's
compliance with international norms.