Pakistan’s top court questions constitutional amendment enabling military trials

During a hearing on appeals challenging such trials, the Supreme Court of Pakistan (SC) questioned on Wednesday the necessity of the 21st Constitutional Amendment, which enabled military trials for civilians.

The seven-member constitutional bench, led by Justice Amin-ud-Din Khan, asked why existing provisions in the Army Act weren’t sufficient to prosecute terrorists involved in the 2014 Army Public School (APS) attack.

On Dec. 16, 2014, a group of heavily armed militants belonging to the proscribed Tehreek-e-Taliban Pakistan (TTP) entered APS Peshawar, killing 134 children and over a dozen staff members. The incident took place in a high-security area in Peshawar, the capital of Pakistan’s northwestern Khyber Pakhtunkhwa province.

The massacre drew worldwide condemnation, prompting Pakistan to reinstate the death penalty after a six-year moratorium. The government executed numerous TTP militants and launched a military campaign in the northwestern tribal districts to eliminate TTP strongholds.

Justice Jamal Khan Mandokhail pointed out that major cases, such as the attacks on the General Headquarters (GHQ) and Karachi Air Base, were not tried in military courts before the amendment.

“Why was a constitutional amendment required when the Army Act already had provisions for collusion?” Justice Mandokhail asked.

Ministry of Defense counsel Khawaja Haris explained that the amendment extended military courts' jurisdiction to include offenses beyond disciplinary and military duties. “The nature of a crime determines the trial forum. If a civilian’s actions relate to the armed forces, it falls under the Army Act,” Haris said.

The APS tragedy prompted lawmakers to pass the 21st Constitutional Amendment in 2015, which expanded military courts’ authority to address severe terrorism cases.

Haris noted that the amendment was justified by the unprecedented nature of the APS attack.

However, Justice Muhammad Ali Mazhar emphasized that the court’s role is to determine whether Sections 2(1)(d) and 2(d)(2) of the Army Act align with constitutional protections.

Debating intent

Justice Mandokhail pressed for clarity on whether crimes tried in military courts, such as the APS attack, were aimed against national interests. “Intent must be established based on evidence, but we need fundamental principles first,” he said.

Justice Mazhar added that intent forms part of trial proceedings, not preliminary rulings. The bench explored whether military courts could ensure procedural fairness, including access to legal counsel and evidence.

Khawaja Haris argued that if the court upholds the contested sections of the Army Act under Article 8(3) of the Constitution, petitions challenging military courts would become inadmissible.

During the proceedings, Justice Hassan Azhar Rizvi recalled emotional moments during the amendment’s passage, noting that a former Senate Chairman Raza Rabbani had wept before casting his vote. “Lawmakers admitted they felt compelled,” Justice Mazhar remarked, adding that the amendment had an initial two-year limitation.

Justice Mandokhail also questioned whether there was collusion during the APS attack. Haris affirmed that such evidence was part of the government’s case.

The bench briefly addressed whether procedural fairness in military trials could meet constitutional standards. Advocate Faisal Siddiqi humorously suggested considering practice in military courts, prompting Justice Mazhar to quip, “Wait for the decision first.”

The court adjourned proceedings until Thursday, with further arguments from the Ministry of Defense anticipated.