SC’s judgement on military courts: Apex court rejects plea seeking deferment of ICAs

ISLAMABAD: The constitutional bench of the Supreme Court (SC) turned down the plea to defer the intra-court appeals (ICAs) against the SC’s judgment on military courts till the decision on 26th Amendment.

A six-judge bench, headed by Justice Aminuddin, and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi and Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Shahid Bilal, on Monday, heard ICAs against the judgment regarding trial of civilians by military courts.

The bench decided to hear the case on a daily basis, and dismissed the additional attorney general’s (AAG) prayer to allow the military courts to announce the verdicts.

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AAG Aamir Rehman informed that the trials of all the accused have been concluded. He apprised that due to the apex court’s order the military courts are not announcing their verdicts.

Former chief justice of Pakistan Jawad S Khawaja had filed a petition challenging the trial of civilians in military courts. Meanwhile, senior lawyer Aitzaz Ahsan had requested to suspend hearings until a decision on the 26th Constitutional Amendment petitions is reached. The court dismissing the application and imposed Rs20,000 fine on former chief justice Jawad S Khawaja.

During the proceeding, the bench inquired from Jawad S Khawaja’s lawyer about the jurisdiction of the constitutional bench. It questioned whether he recognised the bench; the counsel responded: “I do not accept the jurisdiction of the constitutional bench.”

The counsel contended that the current bench had been nominated by the Judicial Commission. Justice Mandokhail then asked whether the 26th Constitutional Amendment had been invalidated. The counsel replied: no. Upon that, Justice Mandokhail directed him to leave the courtroom, adding the benches are being constituted in accordance with the 26th Amendment. He further said that the same bench (constitutional bench) would hear the petitions against the 26th amendment.

Justice Mazhar criticised the counsel for adopting delaying tactics. He said: “At every hearing, there seems to be a new request.” If the 26th Amendment were to be struck down, the Court judgments would remain protected, he said emphasising that even those held under military courts would likely support this outcome.

Justice Hilali asked the counsel to think about those persons who are in military custody. She observed the counsel has no direct right in the instant matter.

Advocate Khawaja Harris, representing the Ministry of Defence, argued that this is wrong to say that civilians cannot be tried by the military courts. He stated that the Army Act is applied on employees working in military establishments like Ordnance Factories and others. Similarly, the civilians who attack the military instalments, or stop the army from performing its affairs would also be tried under Army Act.

Justice Hilali inquired whether the House of Corps Commander comes under military instalment. Khawaja Harris replied that Corps Commander House also has some sensitive documents, adding his house can be declared office. Justice Hilali remarked that every day they see corps commanders come from their houses.

Justice Rizvi questioned how the trial of persons, who had attacked Army Public School, was conducted? Khawaja Harris responded that their trial was made possible through 21st Amendment.

Justice Naeem asked Khawaja Haris to explain how the Anti-Terrorism Courts (ATC) handed over the custody of the accused to the military. Is there any such order on the record, he further questioned.

Before the conclusion of the hearing, Hafeezullah Niazi, father of Hassaan Niazi, who is in military custody since last year, came on the rostrum, submitted that due to the Supreme Court’s judgment the uncertain situation took place. Justice Mandokhail asked Niazi if he wished to proceed with the case, to which, he affirmed his intent. The case is adjourned until today (Tuesday).

Copyright Business Recorder, 2024