SC hints at taking up pleas against 26th Amendment in January

ISLAMABAD: Supreme Court Judge Justice Amin-ud-Din Khan Friday hinted at hearing petitions against the 26th Amendment in the second week of January if the seven-member bench ended the case challenging the apex court’s judgment, declaring the civilians’ trial in the military courts as unconstitutional.

The federal government had filed the intra-court appeals (ICAs) against the apex court’s October 23, 2023 judgment declaring the civilians’ trial in the military courts as unconstitutional.

Judge Justice Amin-ud-Din Khan heads the seven-member bench presently hearing the ICAs.

Justice Amin said many cases, including those pertaining to the 26th Amendment, were in the pipeline.

The seven-member bench allowed the military courts to announce the decisions in cases of 85 suspects of May 9 incident, whose trials had been completed but held that these decisions would be subject to the decision of the intra court appeals (ICAs) pending with it.

Justice Jamal Khan Mandokhel, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan and Justice Musarrat Hilali were the other bench members.

The court declared that the accused who could be granted concessions in sentences should be released forthwith, while those who could not be released should be transferred to the jails.

Last year on October 23, a five-member larger bench of the Supreme Court had declared the trial of civilians in the military courts as unconstitutional and held that 103 persons and others who may be placed in relation to the events arising from May 9th and 10th May could be tried by the criminal courts established under the ordinary or special law of the land.

The petitioners, including former chief justice of Pakistan Justice Jawad S Khwaja, former prime minister and PTI Chairman Imran Khan, Barrister Aitzaz Ahsan, Supreme Court Bar Association (SCBA), Karamat Ali, Zaman Khan Vardag, and Junaid Razzak, had challenged in the Supreme Court the trial of May 9 and May 10 suspects in the military courts under Article 184(3) of the Constitution.

The court by a 4-1 majority declared the civilians trial in military courts as unconstitutional.

Later on the federal caretaker government, Ministry of Defence and governments of Punjab, as well as Balochistan had filed ICAs under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 read with Article 184 (3) of the Constitution against the order passed by the apex court in the petitions, challenging the trial of civilians in military courts.

It was prayed that the trials of 103 civilians should continue.

Justice Jamal Khan Mandokhel told the counsel to take into account the aspect that the Army Act was framed before the Constitution of 1973.

Khwaja Haris submitted that there were errors in the decision of the Supreme Court, on which Justice Jamal Mandokhel asked the counsel to at least avoid disrespecting the court’s verdict.

At this, Khwaja Haris apologized saying his words were not of legal nature.

Justice Muhammad Ali Mazhar recalled that the bench the other day had asked for providing the details of all the incidents of May 9.

“At present, the matter before us is only up to the attack on the Corps Commander’s House,” Justice Mazhar remarked and asked the additional attorney general that if the government wanted to keep the case only to the extent of attack on the Corps Commander’s House, then the bench should be informed.

The additional attorney general, however, submitted that all the details had been received Friday morning, which should be formally submitted to the court through a miscellaneous application.

Justice Musarrat Hilali asked what will happen to the trial under the provisions which had been declared null and void by the apex court adding that even before May 9, someone would have been punished under these provisions.

Khwaja Haris replied that the decisions made under the relevant provisions before being annulled generally get constitutional protection. At this, Justice Musarrat Hilali observed that it would be a matter of bias towards the accused.

Justice Mandokhel remarked that no one was forced to join the army but they join voluntarily adding that an army recruit knows that the army Act will be applied to them.

Justice Mandokhel observed that the Army Act had been created for the employment rules and discipline of the army.

Khwaja Haris submitted that no one joins the army with the intention of committing a crime adding that the basic rights end when a crime is committed.

Justice Mandokhel asked the counsel whether in the appeal, the court will be limited only to the plea of the appellant and further asked whether the court could also review other aspects of the decision. Justice Amin-ud-Din Khan remarked that the parties could be limited to their submissions but not the court. Justice Jamal Khan Mandokhel said that this was a serious matter wanting to be satisfied.

Meanwhile, Justice Amin-ud-Din Khan asked Khwaja Haris how much more time will he take to which he replied that his arguments will take some more time. Later, the bench adjourned the hearing until after winter vacations.