ISLAMABAD: The Supreme Court’s constitutional bench (CB) hearing a set of intra-court appeals was requested on Tuesday to strike down Sections 2(1)(d)(i) and (ii) of the Pakistan Army Act (PAA) on the basis of Article 10A of the Constitution that guarantees the right to a fair trial.
Unlike elsewhere in the world where civilians cannot be dragged into courts that are not independent, Section 2(1)(d)(ii) of PAA permits citizens’ trial by military courts in Pakistan, argued senior counsel Salman Akram Raja representing Arzam Junaid, who was sentenced to six years by a military court in connection with the May 9 violence.
Headed by Justice Aminuddin Khan, the seven-judge CB was hearing a set of intra-court appeals against the October 2023 order of the five-judge bench that nullified civilians’ trial by the military courts in the May 9 case.
While Salman Akram Raja, who is also PTI secretary general, completed his arguments, Uzair Bhandari, representing PTI’s founding chairman Imran Khan, will commence his arguments on Wednesday.
Imran’s lawyer to initiate arguments today after Salman Akram Raja concludes his side
Mr Raja also cited the detailed reasons of Justice Ayesha A. Malik in the October 2023 decision. According to Justice Malik, Article 10A is a categorical, unqualified, and fundamental right that guarantees a fair trial and due process to individuals facing trial.
This right is not merely an ethical notion or philosophical concept, but a fundamental right enshrined in the Constitution that must be upheld. Consequently, Justice Malik ruled that fundamental rights cannot be compromised simply because it is deemed expedient.
Thus, Article 10A is a very powerful and standalone provision of the Constitution, and if the CB decides the present appeals based solely on Article 10A, it would be entirely sufficient and satisfactory, the counsel emphasised. As an independent court, rather than a military court, is an essential requirement, any court presided over by an executive officer, a colonel, or any senior military officer cannot be deemed an independent court, regardless of the severity of the crime committed by the accused, the counsel argued.
However, he expressed serious reservations with certain observations of Justice Munib Akhtar in his detailed reasoning on the military trial, and said application of these observations would have a catastrophic effect on civilians’ trials.
According to Justice Akhtar, challenge in terms of Article 175 to courts martial is of no avail. “All that is meant is that courts martial as presently conceived and understood, for historical reasons stand outside the framework of Article 175 (3) and cannot be constitutionally attacked or challenged.”
