A former prime minister facing military trial? Pakistan flirts with risky precedent.

Speculation that Pakistan’s powerful military is paving the way for former Prime Minister Imran Khan to be tried in a military court is stirring panic in the country of 241 million.

A court martial is far from imminent. Mr. Khan has filed a preemptive petition against a possible military trial, which is being heard by the Islamabad High Court, and legal experts are also waiting for Pakistan’s Supreme Court to revisit a 2023 decision that found the military trial of civilians incompatible with the constitution. Either case could present barriers to trying Mr. Khan in a military court. The federal government also weighed in today, telling the High Court that a military trial is not currently under consideration, though the court is demanding a clearer answer by Sept. 24. 

Yet even the possibility of such a trial has sparked broad backlash.

Though it is not uncommon for Pakistani politicians to face prosecution – the last four prime ministers have all served jail time – no prime minister has ever been tried by a military court. If Mr. Khan becomes the first, some experts believe it will lead to violent disorder and sound a death knell for the country’s ailing democracy.

Lawyer Salman Akram Raja, who ran in the general election as an affiliate of Mr. Khan’s political party, the Pakistan Tehreek-e-Insaaf (PTI), notes that military tribunals have over a 99% conviction rate. Trying a civilian leader there “would be a complete travesty of fair play and due process, but it seems that the system here is becoming desperate,” he says, referring to Pakistan’s powerful military establishment and its longstanding feud with Mr. Khan.

A case of collusion?

The crisis began earlier this month, when officials from both the government and the armed forces alluded to the possibility of a military trial for Mr. Khan. Hypothetically, their case would hinge on former director-general of Inter-Services Intelligence, retired Lt. Gen. Faiz Hameed, who was arrested by the military last month and is facing a court martial for “multiple violations” of the Army Act.

The former spymaster, once an aspirant for the position of army chief, has been accused of colluding with Mr. Khan to destabilize the tenure of Gen. Asim Munir, the current head of the Pakistan Army, and of helping to orchestrate the riots of May 9, 2023. The PTI has always maintained that the riots, in which PTI supporters allegedly targeted military installations, were part of a false flag operation conducted to put Mr. Khan behind bars.

According to Mr. Raja, the lawyer, Mr. Khan is likely to be accused of assisting Lieutenant General Hameed in planning a mutiny in the armed forces. “That is what they will accuse him of … being an accessory,” he says. “All of this is manufactured, and it’s meant to take Imran Khan away from the normal civilian courts where he’s won case after case.”

Veteran journalist Hamid Mir concurs: “The main target is not General Faiz,” he says. “The main target is Imran Khan, and they want to convict him through General Faiz.”

But even if there are certain circumstances in which the military can ask to take custody of a civilian suspect, it does not have the power to do so without the approval of the civilian courts.

“It’s a very high legal bar and it’s difficult to imagine it would be met here,” says Michael Kugelman, who directs the South Asia Institute at the Wilson Center, noting how Pakistan’s courts have tried to distance themselves from the military in recent months. “We have seen the judiciary assert itself and defy pressure from the establishment, and that suggests the civilian courts would push back against attempts to try him in a military court.”

But that doesn’t mean a military trial is off the cards. A seven-member bench is set to review the Supreme Court’s order against trying civilians in military court – an order that has been provisionally suspended in the past. If those justices choose to reverse the order, as some believe they will, “then legally a military trial becomes possible,” says Mr. Raja.

Backlash from Khan camp

During a rally on the outskirts of Islamabad last week, the chief minister of the Khyber-Pakhtunkhwa province, Ali Amin Gandapur, alluded to the possibility of a siege on the prison where Mr. Khan is being held.

“If Imran Khan is not released within the next week or two through legal channels, I swear to God we will have him released ourselves,” he told a rally of charged supporters. “I will lead you, I will take the first bullet.” 

His comments – which came after Pakistan’s defense minister said “there is ample evidence” against Mr. Khan which "points toward holding his trial in a military court” – sparked a crackdown by authorities, with security officials arresting several parliamentarians from the PTI. Some of these arrests were made on the premises of the National Assembly, which is illegal under Pakistani law, and represents an unprecedented breach of authority. 

“No security agency or police can arrest any parliamentarian from within the jurisdiction of the speaker of the national assembly,” says Mr. Mir, the journalist.

The unrest comes at a time when the government is on the verge of unlocking a $7 billion financing agreement from the International Monetary Fund, which is expected to approve the loan on Sept. 25. Experts have warned, however, that a protracted period of instability could end up jeopardizing the country’s economic outlook after years of high inflation and disappointing growth. 

“Given the fragility of the economy as the country awaits an IMF bailout, the last thing Pakistan needs is more political turmoil,” says Maleeha Lodhi, who served as Pakistan’s permanent representative to the United Nations from 2015 to 2019. “Both sides need to step back as no one will win if the economic situation worsens.”