‘Int’l law does not ban civilian trials in military courts,’ says Pakistani judge

The Supreme Court of Pakistan on Monday continued hearings on an intra-court appeal challenging its earlier ruling on trying civilians in military courts.

A seven-member constitutional bench, led by Justice Aminuddin Khan, conducted the proceedings. During the hearing, Justice Naeem Akhtar Afghan observed that international laws do not explicitly prohibit the court-martial of civilians.

Salman Akram Raja, representing Arzam Junaid, argued that civilians cannot be stripped of their fundamental rights and subjected to military trials. He contended that such trials violate international fair trial standards, which require transparency, independence, and public proceedings.

Justice Jamal Mandokhail urged Raja to conclude his arguments within 30 minutes, though he initially stated he would finish by 11 a.m. Raja argued that military tribunal decisions worldwide are generally subject to civilian court appeals. He cited a ruling by the European Court of Human Rights that led several nations to amend their military court procedures.

Justice Mandokhail questioned the implications of not following international principles. Raja responded that non-compliance raises concerns over transparency. He emphasized that some international standards are binding, while others serve as guidelines. He also referenced Article 10-A of the Constitution, which ensures the right to a fair trial in line with global legal norms.

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Justice Afghan reiterated that international law does not forbid the court-martial of civilians. Raja countered by pointing to the UK’s system, where military trials are overseen by independent judges rather than military officers. He cited the FB Ali case, noting that judicial separation of powers was not in place at the time and that deputy commissioners and tehsildars previously conducted criminal trials. He questioned why Anti-Terrorism Courts (ATCs) were not handling the cases of 105 individuals facing military trials.

Raja also highlighted concerns raised by the UN Human Rights Committee in its 2023 review of Pakistan’s military justice system. He referenced the European Commission’s reservations about trying civilians in military courts, particularly those linked to the May 9 incidents. He noted that Pakistan’s GSP+ status requires adherence to human rights standards.

A lighthearted exchange took place when Raja mentioned a UK military trial overturned by the European Court of Human Rights. Justice Muhammad Ali Mazhar jokingly compared it to the May 9 incidents, saying a television was also broken in that UK case. Raja replied that he had met the man who broke the TV on May 9, describing him as remorseful and unemployed. Justice Mandokhail asked if he had met the UK defendant as well, prompting laughter when Justice Afghan quipped that Raja had met the "Pakistani version" of the accused.

Justice Hassan Azhar Rizvi also recalled Raja’s earlier claim that his client was a first-class cricketer. "He wasn’t playing cricket on May 9, was he?" he asked. Meanwhile, Justice Mazhar questioned whether the law allowing Indian national Kulbhushan Jadhav the right to appeal was introduced specifically for him. Additional Attorney General Aamir Rehman assured the court he would present the relevant law.

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Raja also disagreed with Justice Munib Akhtar’s ruling on military courts, arguing that judges should not add words to the Constitution that are not explicitly written. He referenced a ruling by former Chief Justice Qazi Faez Isa, which stated that constitutional interpretations should not introduce unwritten elements.

The hearing also saw a moment of laughter when PTI’s counsel, Uzair Bhandari, shared a classroom anecdote about punctuation changing sentence meanings. Justice Mandokhail added his own example, recalling a humorous misreading of a shop sign in Lahore’s Anarkali Bazaar.

Raja concluded by asserting that the right to a fair trial is fundamental to judicial independence. He argued that Section 2(D)1 of the Army Act could be struck down under Article 10-A, even without Article 175(3). Justice Mazhar pointed out that Justice Munib Akhtar had described military courts as a parallel judicial system. Raja countered that Justice Akhtar’s interpretation was based on historical context, which he deemed a risky approach to constitutional reading.

With Raja concluding his arguments, the Supreme Court adjourned the hearing. PTI founder Imran Khan’s counsel, Uzair Bhandari, is set to present his arguments in the next session.