SC constitutional bench seeks further arguments and adjourns further hearing of case until Wednesday (tomorrow)
ISLAMABAD: (UrduPoint/Pakistan Point News-Feb 18th, 2025) Justice Naeem Akhtar Afghan of the Supreme Court remarked that international principles do not prohibit the court-martial of civilians.
Justice Afghan, who is the member of a seven-member bench of the Supreme Court, gave these remarks while hearing the case related to the civilians’ trial in the military courts
Salman Akram Raja, the lawyer for the May 9th suspect Arzam Junaid, continued his arguments, stating that he would complete his arguments by 11am. Justice Jamal Mandokhel advised him to finish his arguments in half an hour for efficiency.
Salman Akram Raja requested to be allowed to continue until 11am, stating that he wanted to complete his arguments. Speaking plainly, he emphasized that civilians' fundamental rights cannot be dismissed in order to hold a court-martial.
He argued that the court-martial of civilians is also against the international standards for a fair trial. International law requires that trials should be held in open courts, should be free and transparent, and trial decisions should be made public. According to international law, appeals against military tribunal decisions are usually heard in civilian courts. The European Court's decision had forced several countries to change their court-martial procedures.
Justice Jamal Mandokhel inquired about the consequences if international principles are not followed. Salman Akram Raja responded by stating that not adhering to international principles means that the trial is not transparent.
Justice Jamal Mandokhel raised a question on what would happen if a country violates international principles. Salman Akram Raja replied that some international principles are mandatory, while others are not. He emphasized that Article 10-A, which guarantees a fair trial, was included in the Constitution in light of international principles.
Justice Naeem Akhtar Afghan remarked that international principles do not state that civilians cannot undergo court-martial.
Salman Akram Raja clarified that in the UK, court-martials are conducted by independent judges, not military personnel. He mentioned that during the FB Ali case, there was no principle of separation of powers in the Constitution. Initially, Deputy Commissioners and Tehsildars conducted criminal trials, and it was argued that if a Deputy Commissioner can conduct criminal trials, so could a Colonel.
Salman Akram Raja further argued that all countries are required to submit reports on their implementation of international standards to the United Nations. The UN Human Rights Committee reviews these reports and provides feedback. In October and November of the previous year, the UN reviewed Pakistan's military justice system and expressed concern over the court-martial of civilians in Pakistan.
He mentioned that according to the UN Human Rights Committee, military courts in Pakistan are not independent, and the report advised the government to grant bail to those in military custody. The European Commission also expressed concern over the court-martial of the 9 May protesters and stated that Pakistan’s GSP Plus status was granted by the European Union.
Salman Akram Raja stated that Justice Yahya Afridi had raised similar concerns in his dissenting note and questioned why the trial of thousands of individuals could be held in the ATC but why not for these 105 individuals.
During the hearing, an interesting exchange took place between lawyer Salman Akram Raja and Justice Naeem Akhtar Afghan. Salman Akram Raja mentioned a case in the UK where a military personnel named Fedley was court-martialed, and the European Court of Human Rights declared the military trial null and void. Fedley, who had been suffering from mental stress, had fired his weapon, causing a tv to break. Justice Muhammad Ali Mazher remarked that a TV was also broken during the events of May 9.
Salman Akram Raja shared that he had met the individual who had broken the TV during the May 9 events and found him deeply embarrassed. The man, who had only completed four grades of education, was jobless. He questioned what society had given such people.
Justice Aminuddin Khan intervened urging them not to focus on individual matters.
Justice Jamal Khan Mandokhel asked Salman Akram Raja if he had met Fedley. Justice Naeem Akhtar Afghan smiled and remarked that Salman Akram Raja must have met the Pakistani Fedley.
Justice Hassan Azhar Rizvi asked, “You mentioned your client used to play first-class cricket but did he go to play cricket on May 9?” Justice Muhammad Ali Mazher also inquired about the law that granted Kulbhushan the right to appeal. Additional Attorney General Amir Rehman responded that he would bring that law to the record.
Justice Muhammad Ali Mazher remarked that the law under which Kulbhushan was granted the right to appeal, was that law applicable to others as well?
Additional Attorney General Amir Rehman mentioned that classification of cases was also allowed in the FB Ali case.
Salman Akram Raja argued that he disagreed with Justice Muneeb Akhtar’s decision regarding the establishment of military courts. He stated that no judge should add words to the Constitution based on ethics or past events, which are not part of the Constitution. He warned that allowing such actions could be dangerous, as judges should not have the power to insert words into the Constitution that are not originally there.
During the hearing, Salman Akram Raja referred to the review of Article 63-A by former Chief Justice Qazi Faiz Isa and stated that the same principle was applied in the review of Article 63-A: words that are not in the Constitution cannot be added.
Justice Jamal Khan Mandokhel remarked that it was commendable that Salman Akram Raja appreciated the decision in the Article 63-A review case. Lawyer Faiz Siddiqui added that it seemed today like a day of judicial recognition.
Founder of PTI’s lawyer Azar Bhandari stated that this constitutional bench is truly interpreting the Constitution. Azeer Bhandari shared a light-hearted anecdote, stating how a teacher once wrote "Toba Toba, Sharaab Se Toba" on the blackboard and explained how two different meanings could be interpreted from it, causing laughter in the courtroom.
Justice Jamal Khan Mandokhel also gave another example of a shop sign that read “Badhya Quality,” which could be misread as “Badhya Ko Ulti,” drawing laughter in the courtroom as well.
Salman Raja referred to the Practice and Procedure decision and the Article 63-A review decisions, pointing out that no court in the world would be independent without the right to a fair trial. He argued that if Article 175(3) of the Constitution did not exist, Section 2(D) of the Army Act could still be declared void based on Article 10-A.
Justice Muhammad Ali Mazher remarked that Justice Muneeb Akhtar considered military courts to be parallel judicial systems in his majority judgment. Salman Akram Raja clarified that Justice Muneeb Akhtar interpreted the Constitution based on historical context but such interpretations could have dangerous consequences as it would be a dangerous approach to read the Constitution based solely on history.
Salman Akram Raja emphasized that when the Constitution is clear, self-interpretation should not take place as seen in the interpretation of Article 63-A. However, he acknowledged that in the review of Article 63-A, the correct interpretation was made.
With this, Salman Akram Raja concluded his arguments, and the Supreme Court adjourned the hearing of the Military Courts case until Wednesday (tomorrow).
PTI’s lawyer Azar Bhandari will start his arguments.
