Legalising Authoritarianism through Pakistan’s Supreme Court

On 7 May 2025, Pakistan’s Supreme Court overturned its own October 2023 judgment that had declared military trials of civilians unconstitutional. In a 5–2 majority decision, the newly constituted Constitutional Bench (hereinafter “the Bench”) reinstated clauses of the Pakistan Army Act that allow the prosecution of civilians in military courts. The ruling was justified on national security grounds, citing the need to prosecute attacks by civilians on military installations, a rationale that conflates dissent with terrorism and bypasses the safeguards of civilian legal processes. This decision not only reverses prior precedent but also marks a troubling endorsement of military jurisdiction over civilian matters, raising fundamental concerns about the erosion of judicial independence and the rule of law. Notably, this was the Bench’s first judgment, and one that sets a dangerous precedent for dismantling constitutional protection.

From peshawar to present: the evolution of military courts

To appreciate the gravity of the 7 May decision, one must revisit the contested history of military courts in Pakistan. In its recent form these courts were first introduced under the 21st Constitutional Amendment in 2015, following the tragic Peshawar school massacre. The amendment, along with a corresponding amendment to the Pakistan Army Act, granted military courts temporary jurisdiction over civilians accused of terrorism-related offences. Initially authorised for two years, these courts were presented as an extraordinary, time-bound measure to support the counter-terrorism framework while the civilian judiciary was reformed.

However, instead of institutional reform, the military courts themselves were normalised. Their tenure was extended (for 2 years) through the 23rd Constitutional Amendment in 2017, once again amending the Army Act to continue trying civilians under opaque procedures. Critics repeatedly warned of their secrecy, the lack of legal representation, closed proceedings, and denial of basic due process. Defense lawyers were often denied access to case files, and defendants could not cross-examine witnesses. The International Commission of Jurists and other legal experts alike raised concerns over the erosion of fair trial standards. Also, in a similar case the United Nations Human Rights Committee and the UN Working Group on Arbitrary Detention have both held that military courts should not be used to try civilians.

In 2019, the constitutional basis for military courts finally lapsed. Nevertheless, authorities continued to try civilians by invoking the Army Act along with the Official Secrets Act (OSA).

Then, in October 2023 a rare moment of judicial resistance occurred, when the Supreme Court finally ruled such trials unconstitutional. The judgment reaffirmed that civilians must be tried in civilian courts and that military courts violated Article 10-A of the Constitution, which guarantees the right to a fair trial.

The October 2023 judgment was delivered in response to the mass arrests of Pakistan Tehreek-e-Insaf (PTI) supporters following the events of 09 May 2023, when protests erupted nationwide after former Prime Minister Imran Khan was arrested at the Islamabad High Court. During these demonstrations, several government and military buildings were allegedly attacked by his supporters. In the aftermath, hundreds of civilians, including political workers and activists, were detained and charged under the Pakistan Army Act, destined for a military trial. Following this, some states also raised their voices against the military trials of the civilians. These trials also prompted a legal challenge, as constitutional cover had already lapsed, resulting in the Supreme Court’s categorical rejection of military court’s jurisdiction over civilians in October 2023. The ruling was widely regarded as a reaffirmation of due process and a rare assertion of judicial independence.

While this judgment firmly reasserted the boundary between military and civilian jurisdictions, it was perceived by the military as a direct challenge to its authority. What followed was not legal dialogue but institutional retaliation, setting the stage for a new constitutional configuration designed to neutralise judicial dissent.

From judicial resistance to constitutional retaliation

The retaliation began with the 26th Constitutional Amendment, enacted on 21 October 2024. The amendment introduced two major changes to the Supreme Court and the broader judicial architecture. First, it created a politically dominated Special Parliamentary Committee to appoint the next Chief Justice of the Supreme Court. This was widely seen as an attempt to block the elevation of the senior judge whose past rulings, including one against military trials, had challenged the military’s authority. By replacing the traditional seniority-based system with a politically influenced selection process, the amendment aimed to neutralise this threat and facilitate the military’s broader regime realignment strategy.

Secondly, the amendment significantly altered the composition of the Judicial Commission of Pakistan (JCP), which is responsible for appointments to the higher judiciary. The new framework shifted the balance of power within the JCP in favour of the executive and legislature. It also tasked the JCO with appointing judges to a newly established Constitutional Bench within the Supreme Court, now responsible for all constitutional matters. While officially framed as a technocratic reform to streamline appointments and prevent allegedWhat appeared as institutional reform was, in effect, constitutional retaliation.

Yet this constitutional move was merely the latest in a series of developments reflecting deeper structural tensions. The political and legal backdrop to this amendment was turbulent. The ouster of a populist-leaning government in April 2022, riven by deepening rifts with the military over foreign policy, institutional autonomy, and control of key appointments, created an opening for regime realignment. General elections were delayed well beyond constitutionally mandated timelines, flouting explicit Supreme Court orders. When finally held in 2024, the elections were riddled with allegations of rigging, voter suppression, media censorship, and the sidelining of the Pakistan Tehreek-e-Insaf (PTI), the most popular political party, through denial of its election symbol. Despite these hurdles, PTI-backed independents were projected to win a majority. However, delayed and disputed result announcements ultimately facilitated the installation of a minority coalition government, politically pliant, electorally fragile, but strategically aligned with the military establishment.

With pliant elites in Parliament and the manipulation of reserved seats to secure a majority, the stage was set for constitutional change. Although the resulting constitutional amendment was passed through formal procedures, its legitimacy quickly unravels when placed in the context of coercion and political manipulation. Rather than strengthening judicial independence, the amendment was carefully designed to shield the politically powerful military, from meaningful legal scrutiny. This reflects a familiar pattern in Pakistan, where legality is routinely weaponised to mask authoritarian consolidation, and constitutional form is manipulated to undermine constitutional purpose.

The first blow: how the bench turned law into impunity

The first ever Constitutional Bench established under the 26th Amendment was selected by the JCP on 5 November 2024. Composed of handpicked judges, it provided the institutional mechanism for retaliation – culminating in its inaugural ruling on 7 May 2025, which reinstated the military trials under the Army Act. The Bench argued that, without such provisions, attacks on military installations could not be effectively prosecuted.. However, this claim is simply incorrect. Civilians have long been prosecuted for such offences under Pakistan’s Anti-Terrorism Laws and Penal Code within the regular civilian judicial system.

In an attempt to deflect criticism over the lack of appellate oversight in military trials, the Bench in the May 7 decision has instructed Parliament to legislate appellate jurisdiction for high courts within 45 days. But this gesture is both cosmetic and uncertain. Nearly 40 days have passed with no sign of such legislation. Even if enacted, it would do little to address the fundamental problems inherent in the military justice system including opaque procedures, lack of transparency, coercive environments, and denial of fair trial guarantees. Past experience suggests that appeals from military courts rarely succeed and often serve more as institutional performance than as meaningful checks.

This ruling, therefore, does more than revive an exceptional measure, it constitutionalises legal impunity. It sets a precedent in which the judiciary not only abdicates its role as guardian of rights but actively validates executive and military overreach. In doing so, the Court has not merely failed the Constitution, it has turned it into an instrument of repression. By authorising military trials for civilians in the name of national security, the Bench strips citizens of their right to be heard by an independent judiciary and normalises emergency logic as a permanent feature of governance.

What lies ahead: authoritarianism by legal design

The implications of the 7 May ruling are far-reaching. Cases currently pending before the Bench involve judicial transfers (part of broader efforts whereby the executive uses its power to appoint and relocate judges in the higher judiciary to secure a favourable majority), the potential reversal of the reserved seats judgment, access to information, and regulation of digital speech, all unfolding amid an intensifying crackdown on dissent. Internet shutdowns, cybercrime prosecutions, and social media bans have become standard tools for silencing opposition. Meanwhile, families of the disappeared, particularly in Balochistan and Khyber Pakhtunkhwa, are being prosecuted under anti-terrorism laws for peacefully protesting enforced disappearances.

This trend illustrates how the law is being weaponised, not to safeguard rights, but to suppress them. The Bench is emerging as a judicial shield for authoritarianism, routinely cloaking repression in the language of constitutionalism and sanitising rights violations through procedural legitimacy. Its validation of military courts has already transformed exceptional emergency powers into routine instruments of governance, dulling both the legal system’s defences and public resistance to authoritarian drift.

This dynamic is once again visible in the Bench’s current review of the reserved seats judgement. A prior ruling had restored PTI’s rightful share of reserved parliamentary seats, a rare judicial intervention that partially remedied post-election disenfranchisement. Upholding that decision, however, would have far-reaching implications, it would not only strengthen PTI’s parliamentary standing but also threaten the very foundation of the 26th Constitutional Amendment, under which the current Bench was constituted. Had the reserved seats been allocated accordingly, the coalition government may not have secured the two-thirds majority required to pass the amendment in the first place. The ongoing attempt to reverse that judgment thus reflects the Bench’s continued alignment with regime interests, and its willingness to dismantle even the most modest gains in democratic representation to preserve its own legitimacy.

Conclusion

The danger posed by the 7 May ruling lies not only in its doctrinal content, but in the role it assigns to the judiciary within an emerging authoritarian legal order. By cloaking exceptional measures in constitutional language and restoring military jurisdiction over civilians, the Supreme Court has not merely eroded rights protections, it has facilitated the systematic repurposing of Pakistan’s constitutional framework to serve executive and military interests. This shift is emblematic of a broader transformation in which legality is no longer a check on power but a vehicle for its consolidation. Through the formal procedures of amendment and judicial review, the Court has granted constitutional legitimacy to what would otherwise be recognised as authoritarian encroachments. The 26th Amendment and the new Bench it produced have thus enabled a jurisprudence of impunity, where repression will be routinised, rights will be reframed as contingent, and judicial independence becomes structurally untenable.

Pakistan’s constitutional crisis is not unique in its forms but striking in its brazenness. It demonstrates how constitutionalism can be hollowed out from within, through institutionally orchestrated compliance with illiberal agendas. The ruling of 7 May must therefore be understood not as an isolated regression, but as a cautionary example of how judicial institutions can be strategically recalibrated to serve undemocratic ends, while preserving the formalities of constitutional discourse.