ISLAMABAD: Justice Amin-ud-Din Khan, head of the seven-member Constitutional Bench, Wednesday remarked that the Supreme Court was not under trial and will deliver its judgment on the civilians’ trial in military courts in accordance with the law and Constitution.
This observation from the apex court judge came during the hearing of intra court appeals (ICAs) of the federal government and defence ministry against the apex court judgment declaring the civilians’ trial in military courts as unconstitutional.
Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Musarrat Hilali, Justice Naeem Akhtar Afghan and Justice Shahid Bilal Hassan were the other bench members.
Sardar Latif Khosa, counsel for Barrister Aitzaz Ahsan, submitted that he had talked to Uzair Bhandari, counsel for the PTI, and will argue before the court. “You should decide it among yourselves as to who will argue first,” Justice Amin-ud-Din Khan told Khosa.
Khosa submitted that the whole nation was looking at the instant case due to which the Supreme Court was under trial.
Replying to Khosa, Justice Amin said the apex court was not under trial and the bench will deliver its judgment in accordance with the law and Constitution.
Justice Muhammad Ali Mazhar asked the counsel as to why the military courts were not invalidated in the 21st Amendment. Khosa replied that it was not annulled due to the wartime conditions and its two-year limit.
At the outset of hearing, Barrister Aitzaz Ahsan, one of the petitioners in the case, objected to the arguments presented the other day by Salman Akram Raja. Ahsan submitted that Salman Akram Raja was also his counsel who had earlier disagreed with Justice Munib Akhtar’s decision.
“But I fully agree with the judgment of Justice Munib Akhtar and gave no such instructions to Raja,” Aitzaz informed the court. Raja clarified that he had only disagreed with one paragraph of Justice Munib’s decision adding that he stood by his arguments made the other day. He contended that the media created a misleading impression.
Addressing Justice Naeem Akhtar, Salman Akram Raja said that his question concerning the absence of an international ban on civilians’ court-martial was widely highlighted in the headlines. Justice Naeem Akhtar Afghan, however, replied that his question was clear and advised Raja to avoid the social media.
He said the bench will not be influenced by the social media in giving verdict. Raja, however, contended that he stood by the arguments he had presented earlier before the bench. Justice Amin told Raja that the bench asked questions for understanding different angles. “Perhaps we may agree with your arguments,” Justice Amin told Raja.
Justice Mandokhail remarked that the media should be cautious while reporting. Justice Musarrat, however, observed that the media also reported against her. The judge said sometimes she wanted to respond but could not, as her position as a judge did not allow it.
Meanwhile, continuing his arguments, Khosa submitted that the Holy Quran and Islamic teachings also emphasized judicial independence and in this respect he cited instances from the Islamic history. Justice Mandokhail observed that judicial independence existed even during the era of Rashidun Caliphs.
Justice Amin asked Khosa to argue extensively and independently on the status of sections of Army Act and further asked him to assist the bench later on as to whether Section 2(d) could be applied to the incidents of May 9 and 10. Khosa submitted that since the Constitution guaranteed the protection of basic fundamental rights, Section 2(d) could not be maintained. He further said the establishment of military courts will have to be seen in historical perspective.
Khosa contended that Section 2(d) was against the Islamic teachings and that military trials were held in secrecy.
At this, Justice Amin reminded Khosa that the defence ministry counsel Khawaja Haris had already explained that a proper procedure existed for fair trials, and it was a separate issue if it was not followed. Engaging Khosa, Justice Mandokhail said he had a vast career in politics and held key political slots and asked what steps he had taken to repeal Section 2(d) adding that parliament was free to abolish it, if needed. Khosa submitted that all legislations against Article 175 had been annulled in the past.
Justice Mandokhail asked the counsel if he had voted against the constitutional amendment. Khosa replied that the PTI had not participated in voting. “But being a parliamentarian, it was your duty to oppose it and play your role as a member of the House,” Justice Mandokhail told Khosa. Khosa replied that during the 26th Amendment, votes were polled forcibly. He contended that the bench should give its decision and they will defend it.
“People would be greatly inspired if the bench upheld the main judgment of the apex court, declaring the civilians’ trial in the military courts unconstitutional,” Khosa contended. Justice Musarrat asked Khosa if any member of the parliament had resigned on 26th Amendment to which Khosa replied that Sardar Akhtar Mengal had resigned from the membership of parliament. Khosa submitted that if all the institutions operated within their constitutional domains, then all problems will be resolved. He said no one knew as to how 103 among 5,000 suspects had been selected for military trial. He asked as to why the police had not stopped the mob involved in May 9 riots. He further said the IG Punjab should be asked as to why the mob was not stopped. “The corps commander’s house falls in my constituency which is most secure,” said Khosa. He further submitted that they had demanded the formation of a judicial commission on the incidents of May 9 and 10 adding that he had also submitted his written formulations.
Justice Mandokhel told Khosa that they will go through his written formulations.
Meanwhile, Uzair Bhandari, counsel for PTI founding chairman, commenced his arguments and submitted that he supports the main judgment, declaring the trial of civilians in military courts as unconstitutional. Bhandari submitted that he will commence his arguments pertaining to the jurisdiction of hearing the ICAs adding that the scope of intra court appeal was very limited.
There is no difference between the jurisdiction of review and intra court appeal (ICA), he said, adding that in review, the judgment could be set aside either for being unconstitutional or on the basis of not examining the record of the matter. “You are limiting our jurisdiction,” Justice Amin told Bhandari.
Bhandari, however, contended that the apex court itself in the Practice and Procedure case had held that the ICA was an internal arrangement. “Had the court accepted our point of view in the Practice and Procedure case, the situation today would have been different,” Bhandari submitted.
Justice Muhammad Ali Mazhar observed that according to Salman Akram Raja, the court could differ with the verdict and its reasons. “Personally, I agree with Salman Akram Raja,” Justice Mazhar said, adding that the court should be cautious in the ICAs matter. “Neither we can declare the judgment as incorrect nor can we give any observations against our brother judges,” Justice Mazhar remarked.
Bhandari submitted that the bench could not overturn the judgment on the basis of difference of opinion adding that in the judgment, three judges had already given their opinion. Justice Amin said the bench will also give its verdict on the jurisdiction of Intra Court Appeals (ICAs). Later, the court adjourned the hearing for today (Thursday). Bhandari will continue his arguments.