Lawyer says believes Article 10A enough to strike down Section 2 (1) (d) of Army Act

ISLAMABAD: Lawyer Salman Akram Raja stated that Article 10A of the constitution, which talks about due process and fair trial, is enough to strike down Section 2(1)(d) of Pakistan Army Act, 1952.

He disagreed with the judgment of Justice Munib Akhtar on trials of civilians by military courts with regard to Article 175 of the constitution, and said on the basis of history or convention or usage exception cannot be created in the constitution. “You (Court) can’t create exception or ‘moral content’ in the constitution, and has to read the constitution and laws as written and not differently.”

The majority judgment, authored by Justice Munib, states, “… courts martial as presently conceived and understood, with which alone we are here concerned, for historical reasons stand outside the framework of Article 175 and cannot be constitutionally attacked or challenged with reference thereto.”

A seven-member SC Constitutional Bench, headed by Justice Aminuddin Khan, on Tuesday, heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts.

Salman Akram Raja, the lawyer for one of the convicts, Arzam Junaid, argued that thousands of persons were arrested aftermath of 9th May incidents and tried in the Anti-Terrorism Court (ATC) but why only 103 persons were selected for trial in the military courts. He said Justice Yahya Afridi in his judgment noted why there was pick and choose, and no distinguishing features have been brought up, adding but no judicial intervention was made at that time.

Justice Jamal Khan Mandokhail inquired from Raja if the cases under Section 2 (1) (d) of Army Act, 1952, are tried in the normal courts then would it ok for him. Raja replied “yes”.

Justice Syed Hasan Azhar Rizvi questioned whether his client’s son, who plays cricket, on that day went to the Corps Commander House to play cricket?

Raja contended that his case is not factual, but constitutional. He stated when the issue before Court is constitutional then it

had to decide the case constitutionally.

During the proceeding, the bench asked whether law passed during PTI regime was for Indian spy Kulbhushan Jadhav or it is applied across the board in Pakistan. Uzair Bhandari, lawyer PTI, told that that law is only for Jadhav, as it was passed after the judgment of International Court of Justice.

Raja, while arguing the case, cited the judgments from foreign jurisdiction. He said “International standards require that trials be public, fair, and transparent, with decisions being made public.” “Decisions from military tribunals around the world are often appealed in courts, and a ruling by a European court has forced many countries to revise their court-martial procedures,” he said.

Justice Mandokhail asked, “What would happen if international principles are not followed?” To which, Raja responded, “Not adhering to international principles means that the trial is not transparent.”

Justice Mandokhail pressed further, “What happens if a country violates international principles?” Raja replied, “Some international principles are mandatory, while others are not. However, the principle of a fair trial, as enshrined in Article 10A of our Constitution, was added in light of international standards.”

Justice Naeem Akhtar Afghan then remarked, “Nowhere in international principles does it state that civilians cannot be court-martialed.”

Arzam’s lawyer referred the verdict of European Court of Human Rights, which acquitted an English army officer Findlay, who had damaged military equipment and a TV set during his service.

Raja said he had met with that boy who had damaged TV in Corps Commander House. He said that that boy, who is uneducated and was jobless, smashed the TV in frustration. The counsel then argued that Uganda’s Supreme Court had struck down provisions, from their statute, used for trial of civilians by the military courts. He contended; “After Uganda, we (Pakistan) are the last vestige of authoritarian regime, where civilians are being tried by the military courts.”

Raja further argued that on the basis of Article 10A of 1973 Constitution the impugned judgment is correct to order that 9th May rioters’ trial should be held in normal courts. He asked the Court to read Article 10A with Article 2(a) of the Constitution in order to strike down Section 2(1)(d) of the Act.

Raja acknowledged that he does support some of the points of Justice Munib’s judgment. He urged the bench to give weight to Article 10A as he was not relying on Article 8(3) of the Constitution, adding that he does not accept the reasoning of Justice Munib’s judgment regarding Article 175 of the Constitution.

Justice Mandokhail questioned if the Court hold that Section 2(1)(d) is valid, and the military courts must conduct trial in accordance with Article 10A then would it be acceptable? Raja argued that where there is no independence of court, then it cannot decide the cases fairly, and violative of due process.

The case is adjourned until today (Wednesday).

Salman Akram Raja has concluded his argument and from tomorrow advocate Uzair Bhandari would argue on behalf of Pakistan Tehreek-e-Insaf.

Copyright Business Recorder, 2025