Trial of civilian in military courts: Why politicians always hide behind judiciary, asks SC

ISLAMABAD: The Supreme Court questioned why the politicians always hide behind judiciary, but do nothing when they are in power regarding the trial of civilians by the military courts.

During the proceeding, Justice Musarrat Hilali asked from Advocate Latif Khosa, who pleaded on behalf of Barrister Aitzaz Ahsan that why you (politicians) always hide behind the judiciary. She asked Khosa that he was a member of parliament, and was also a minister and why at that time he had not modified or removed controversial provisions from the law (Army Act).

Khosa was Advisor to Prime Minister on Science and Technology, Senator and the Punjab governor during the regimes of Pakistan People’s Party, but in general elections 2024, he was elected on the ticket of Pakistan Tehreek-e-Insaf.

A seven-member SC Constitutional Bench headed by Justice Aminuddin Khan, on Wednesday, heard intra-court appeals (ICAs) against the apex court’s decision on the trial of civilians by military courts.

Khosa, replying to the Court query, argued that everyone knows how the 26th Amendment was passed. Justice Amin told him that your party had also taken part in the preparation of the amendment.

Justice Hilali inquired why no politician tendered resignation upon the approval of the amendment. Khosa informed that Akhtar Mengal had resigned from the Senate. He asked the bench to deliver its judgment (against the trial of civilians by military courts), adding they will support it and the whole nation would stand behind them.

Khosa contended that due to military trials in erstwhile East Pakistan now Bangladesh there was hatred for Pakistan army. Justice Hilali remarked that everyone is aware of reasons of the fall of Dhaka. She said that military trials could be the last reason of separation of the East Pakistan.

During his arguments, Khosa gave reference of international treaties and judgments regarding military trial, and also talked about subcontinent’s constitutional history. Justice Syed Hasan Azhar Rizvi inquired why you failed to present these reports in the Parliament when you were in the power, but have started worrying when you are in opposition now.

Khosa contended that the holy Quran and Islamic teachings also emphasised judicial independence and further referenced instances from Islamic history. Justice Mandokhail responded that judicial independence existed even during the era of the Rashidun Caliphs.

Khosa said Section 2 (1) (d) of Pakistan Army Act, 1952, was against Islamic teachings as the military trials were held in secrecy. He; therefore, requested the bench to strike down the Section. Upon that, Justice Jamal Khan Mandokhail inquired from Khosa what his party (PTI) had done to modify or remove the Section from statute.

Khosa argued that the 21st Amendment was passed to combat terrorism as the terrorists entered into Pakistan. Justice Muhammad Ali Mazhar questioned what the reason was that the Court (SC) did not strike down the 21st amendment in Rawalpindi District Bar and others petitions.

Khosa replied that the majority judgment held that there was a war-like situation in the country, as bomb blasts incidents were occurring everywhere in the country. He further said that the 1st Amendment was not struck down by the Supreme Court because of the sunset clause in it.

Justice Rizvi inquired from the counsel are you still a Member of Parliament. He replied, yes. Justice Mandokhail then asked have you cast vote in 26th Amendment. Khosa replied he had boycotted the session.

When Khosa, instead of arguing the case, started reading reports from his paper-book, Justice Naeem Akhtar Afghan told him to assist the Court on legal points as they would read Aitzaz Ahsan’s arguments themselves from the paper-book, which he provided to the judges.

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.

Justice Mazhar asked why Parliament had then introduced the Practice and Procedure Act and why they could not go beyond their review authority.

Justice Amin also questioned why a larger bench had been formed if it was only a review, to which, Bhandari responded that seven new judges were hearing the appeals.

Justice Mazhar noted that the right of appeal existed in other laws and that Bhandari’s arguments differed from Raja’s. He suggested reviewing the scope of intra-court appeals for future cases.

Justice Mandokhail remarked that the 26th Constitutional Amendment had brought a new setup and questioned whether the previous rules were still applicable and warned against forcing the court into a precarious situation.

Justice Mazhar pointed out that rulings under Article 184 had harmed people in the past and that parliament had; therefore, granted the right to appeal.

Justice Afghan said that even if Bhandari’s argument was accepted, his submissions would be complete, and he appeared to be defending the main ruling.

The case was adjourned until today (Thursday).

Copyright Business Recorder, 2025