Supreme Court’s Justice Muhammad Ali Mazhar questioned on Wednesday why military courts were not nullified in the 21st Constitutional Amendment.
The judge, part of the seven-member constitutional bench led by Justice Aminuddin Khan, heard the intra-court appeal against the trial of civilians in military courts.
Representing Aitzaz Ahsan during the hearing, lawyer Latif Khosa objected to arguments made the previous day by Salman Akram Raja, stating that Raja was also his lawyer. He said Raja had disagreed with Justice Munib Akhtar’s decision, whereas he fully agreed with it and had given no such instructions to Raja.
Meanwhile, Raja clarified that he had only disagreed with one paragraph of Justice Munib’s decision and said that he stood by his arguments made a day earlier, adding that the impression created in the media was misleading.
Addressing Justice Naeem Akhter Afghan, Raja said that his question regarding the absence of an international ban on civilians’ court-martial was widely highlighted in headlines.
To this, Justice Afghan said that his question was clear, advising against paying attention to social media as they did not do so themselves.
Justice Jamal Khan Mandokhail remarked that the media should be cautious in reporting, while Justice Musarrat Hilali stated that although she often wanted to respond to news about her, her position as a judge did not allow it.
Continuing on, Khosa argued that the entire nation was watching the case and claimed that the SC itself was under trial. However, Justice Aminuddin disagreed and noted that the court was not under trial and would decide according to the Constitution and law.
The counsel further contended that the Holy Quran and Islamic teachings also emphasised judicial independence and further referenced instances from Islamic history.
In response, Justice Mandokhail said that judicial independence existed even during the era of the Rashidun Caliphs.
According to the lawyer, Section 2 (d) was against Islamic teachings and that military trials were held in secrecy.
However, Justice Amin-ud-Din responded by saying that Khawaja Haris had already explained that a proper procedure for fair trials existed, and it was a separate issue if it was not followed.
Pointing out Khosa’s extensive career in politics, Justice Mandokhail asked what steps had he taken to repeal Section 2(d) during his time in various key positions, adding that Parliament was free to abolish it if needed.
Khosa argued that all legislation against Article 175 had been nullified in the past. Justice Mazhar questioned why military courts were not declared null and void in the 21st Amendment.
Khosa replied that the amendment was not nullified due to wartime conditions and its two-year limit.
During the hearing, Justice Hilali noted that Parliament approved the 26th Amendment but – Khosa – expectrf the courts to declare it null and void. Justice Mandokhail asked whether Khosa had voted against the constitutional amendment, to which the lawyer replied that the Pakistan Tehreek-e-Insaf (PTI) had not participated in the voting.
Justice Mandokhail remarked that it was Khosa’s duty to oppose it and play his role.
Additionally, Khosa also questioned why police had not stopped the mob – involved in the May 9 riots. At this, Justice Hilali asked if he wanted to see bodies instead – due to the confrontation between the law enforcers and the people.
After Khosa concluded his arguments, PTI founder Imran Khan’s lawyer, Uzair Bhandari, presented his arguments and agreed with all arguments except Raja’s objection to part of Justice Munib’s decision. The court later adjourned the hearing of the case till Thursday (today).