ISLAMABAD: In a significant legal development, the Supreme Court of Pakistan’s constitutional bench has been petitioned to annul specific sections of the Pakistan Army Act (PAA) under Article 10A of the Constitution, which ensures the right to a fair trial. On Tuesday, senior counsel Salman Akram Raja, representing Arzam Junaid, called for the removal of Sections 2(1)(d)(i) and (ii) of the PAA. Junaid had been sentenced to six years by a military court for his involvement in the May 9 violence.
The seven-judge constitutional bench, led by Justice Aminuddin Khan, is reviewing appeals against a previous ruling from October 2023 that invalidated civilian trials in military courts pertaining to the May 9 incidents. The appeals argue that the military court trials contravene the fundamental right to a fair trial as enshrined in Article 10A. Salman Akram Raja, who also serves as the PTI secretary general, concluded his arguments, while Uzair Bhandari, representing PTI’s founding chairman Imran Khan, is set to begin his presentation today.
Raja emphasized that Article 10A is not just a philosophical concept but a fundamental constitutional right that must be upheld. He argued that military courts, presided over by military officials, do not meet the standards of independence required by a fair trial. He cited Justice Ayesha A. Malik’s detailed reasoning from the October 2023 decision, which underlined that fundamental rights cannot be compromised for expediency.
The counsel expressed concerns over certain interpretations by Justice Munib Akhtar regarding military trials, suggesting that these interpretations could have detrimental effects on civilian trials. Justice Akhtar had previously noted that challenges to military courts under Article 175 are ineffective, as these courts historically stand outside the constitutional framework of Article 175(3).
Raja urged the bench to interpret the Constitution correctly, free from past judgments that might allow historical or moral exceptions to influence judicial decisions. He warned against judges deciding based on personal or moral perspectives, referencing former Chief Justice Qazi Faez Isa’s comments on similar tendencies.
The counsel highlighted international norms, including a 1997 European Court of Human Rights case, which deemed the trial of a British soldier illegal, to bolster his argument against the military trial of civilians. He pointed out that military courts are not conducted by army officers in the UK, aligning with international fair trial standards. Furthermore, the United Nations Human Rights Committee has expressed concerns over civilian trials in military courts in Pakistan.
During the proceedings, Justice Naeem Akhtar Afghan questioned the international stance on the court-martial of civilians, to which Raja responded by highlighting the independence of judges in UK military trials. The counsel concluded by asserting that Article 10A was incorporated into the Constitution to align with international standards, which advocate for independent judicial proceedings.
The Supreme Court’s decision on this matter will be closely watched, as it carries significant implications for the interpretation of constitutional rights and the jurisdiction of military courts in Pakistan.
