Can Pakistan subject ex-PM Imran Khan to a military trial?

Islamabad, Pakistan – The Pakistani military and the civilian government have indicated in recent days that former Prime Minister Imran Khan, who has been imprisoned since August last year, might now be tried in the country’s secretive military courts.

“There is ample evidence now against the former prime minister, which points toward holding his trial in a military court,” Defence Minister Khawaja Asif said during an interview with a private news channel last week. However, he did not elaborate on the evidence against Khan.

Asif’s remarks came after a news conference by General Ahmed Sharif Chaudhry, the head of the military’s press wing, who hinted that civilians who conspire with military personnel for personal or political gain could face legal action.

Chaudhry outlined the conditions under which a civilian could be tried under military law but avoided directly addressing Khan’s situation.

“Under military law, any individual who uses military personnel, subject to the Army Act, for personal or political gain, and if there’s evidence, will face legal consequences,” Chaudhry said on September 5.

Speculation about Khan’s potential military trial stems from his alleged involvement in unrest on May 9 last year. On that date, Khan’s arrest in connection with a corruption case led to protests by supporters of his Pakistan Tehreek-e-Insaf (PTI) party. The demonstrations escalated, targeting state buildings and military installations, and resulted in the arrest of thousands of people, of which only about 100 faced military trials.

Amid concerns about Khan being handed over to the military, his legal team filed a petition on September 3, asking the Islamabad High Court to preemptively block any such move.

Is Imran Khan accused of conspiring with military officers?

The legal debate centres around whether Khan can be tried under the Pakistan Army Act, which allows civilians to be prosecuted in military courts under exceptional circumstances.

Chaudhry’s remarks, though not specifically aimed at Khan, suggested that any civilian encouraging military personnel to act against the army or the state could be tried in a military court.

The military has so far not accused Khan of colluding with army officers for the May 9 violence. But the Pakistani army has also recently begun court martial proceedings against former spy chief Faiz Hameed and three of his associates, triggering speculation over whether that legal action might be linked to any prospective moves against Khan.

Khan, who has faced three convictions since his 2023 arrest, remains imprisoned in Rawalpindi’s Adiala Jail in connection with a case involving the state gift depository. All three of his prior convictions were either overturned or suspended. He also faces charges related to the violent events of May 9.

Can a civilian be tried in a military court?

The government has argued that the constitution permits civilians to be tried in military courts. During Khan’s tenure as prime minister from 2018 to 2022, several civilians were tried under the military law.

However, Khan’s PTI party challenged the legality of military trials for civilians following the May 9 events, filing a petition in the Supreme Court.

Lawyer Rida Hosain explained that in October 2023, a five-member bench of the Supreme Court ruled that the court martial of civilians was unconstitutional. However, the government appealed this decision, and the verdict was suspended in December 2023.

“This ruling is currently suspended, meaning that civilians can still be tried in military courts,” Hosain told Al Jazeera.

Will Khan be handed over to the military?

Islamabad-based lawyer Salaar Khan noted that while it remains unclear whether a case against Khan will proceed in military court, the law permits the military to apply for a civilian to be handed over to them under certain circumstances.

However, Hosain clarified that this is not an automatic process. “It is not possible for the army authorities to take a civilian into custody as a matter of right. A civilian must first be charged with a relevant offence in a civilian court, and a judge must provide a reasoned opinion before a civilian can be transferred to military authorities.”

What rights do civilians have in military courts?

Pakistan’s military court trials, formally known as field general court martial (FGCM), happen under the Judge Advocate General (JAG) branch of the military’s legal directorate. The president of the court and the prosecution counsel are both serving military officers.

Military trials are known for their secrecy, with limited transparency in court proceedings and without the presence of the public. However, defendants have the right to legal representation, and if they cannot afford a lawyer, they can request a military officer to represent them.

If convicted, defendants have the right to appeal within 40 days to a military court of appeals. If still unsatisfied, they can take their case to higher civilian courts.

Has a former PM ever faced a military trial in Pakistan?

In its 77-year history, Pakistan has never had a prime minister who could complete a five-year tenure. Many of them have faced criminal cases, and have spent years in jail.

However, while the country has a history of civilians being tried in military courts, no former prime minister has ever faced such a trial.

Lawyer Inam-ul-Rahiem, a former military official, is opposed to the trial of civilians in military courts but does not believe Khan’s case will go that far.

“I don’t think the government will send Khan’s case to military court. He’s a political leader and that could pit him against the army as an institution, potentially causing reputational damage for the military,” Rahiem said.

Rahiem also emphasised that unless there is undeniable evidence linking Khan to what the government considers seditious activities, his ongoing trials in civilian courts are more appropriate for the charges he is facing.

“The government would need to present concrete proof of Khan’s involvement in inciting military personnel for personal gain before a military trial could proceed,” he said.

Lawyer Hosain added that the Supreme Court’s October 2023 ruling stressed that a civilian court needed to issue a reasoned order before a civilian could be transferred to military custody. That ruling — though suspended now — adhered to what Hosain believes ought to be the law of the land.

“From start to finish, the military justice system is incompatible with fundamental rights,” she added.