A seven-member constitutional bench, headed by Justice Amin-Ud-Din Khan, heard the appeal, with senior lawyer Salman Akram Raja representing convicted defendant Arzam Junaid.
Last year, a constitutional bench of the apex court conditionally permitted military courts to issue verdicts in cases involving 85 individuals accused of participating in the May 9, 2023, riots. The bench ruled that these judgments would remain subject to the Supreme Court’s final decision in the pending cases.
Following this ruling, military courts sentenced 85 individuals, reportedly linked to the protests targeting military installations and monuments, to prison terms ranging from two to ten years. In January, the military accepted mercy pleas from 19 of the 67 convicts sentenced in these cases on humanitarian grounds, according to the Inter-Services Public Relations (ISPR).
On October 23, 2023, a five-member bench of the Supreme Court unanimously declared the military trials of civilians unconstitutional after reviewing petitions challenging these proceedings.
During the hearing, Salman Akram Raja argued that military trials violate civilians’ fundamental rights and fail to meet international fair trial standards, which mandate transparent, independent, and open proceedings. He noted that in many countries, military tribunal decisions can be challenged in civilian courts, citing a European court ruling that prompted legal reforms in several nations.
Justice Jamal Mandokhail questioned the implications of violating international principles. Raja responded that non-compliance with international standards renders a trial unfair. When asked about the consequences states face for such violations, he explained that some international legal principles are binding, while others serve as guidelines.
Raja referenced Article 10-A of the Constitution, which guarantees the right to a fair trial, emphasizing that this provision aligns with international legal standards. However, Justice Afghan maintained that there is no explicit prohibition against court-martialing civilians under international law.
Further elaborating, Raja pointed out that in the UK, military trials are overseen by independent judges rather than military officials. He also recalled past judicial practices in Pakistan, where civilian officials such as deputy commissioners and tehsildars were authorized to conduct criminal trials, arguing that military officers could, therefore, do the same.
Additionally, Raja cited a United Nations Human Rights Committee report that criticized Pakistan’s military courts for lacking independence and recommended that the government grant bail to individuals held in military custody.
After concluding his arguments, the hearing was adjourned.
