The Supreme Court on Monday dismissed the government’s petition seeking to allow military courts to announce case verdicts.
“Giving permission would mean recognising the authority of military courts,” remarked Justice Musarrat Hilali who was part of the apex court’s seven-member constitutional bench.
Headed by Justice Amin-Ud-Din Khan, the bench also includes Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Naeem Akhtar Afghan, and Justice Shahid Bilal Hassan.
Furthermore, the court today also threw out former chief justice Jawwad S Khawaja’s petition seeking the postponement of the hearings of cases relating to the trial of civilians in military courts till the 26th Constitutional Amendment issue was decided.
The court also slapped a fine of Rs20,000 on the former chief justice.
Justice Ayesha A Malik was not part of the bench as the Constitutional Committee observed that since the judge was a member of the earlier bench whose judgment was under challenge, therefore, she could not sit on the constitutional bench for those appeals.
The hearing
During the hearing today, the court questioned Khawaja’s counsel, asking: “Do you recognise the constitutional bench?”
In response, the counsel said: “I do not accept the jurisdiction of the constitutional bench.”
Justice Mandokhail, addressing this remark, said: “Then you may leave the courtroom.”
The counsel further asserted that the current constitutional bench was nominated by the Judicial Commission.
At this, Justice Mandokhail inquired whether the 26th Constitutional Amendment had been invalidated? He was joined by Justice Mazhar, who observed: “You are employing delaying tactics. At every hearing, some new request emerges.”
“If the 26th Amendment is annulled, judicial decisions will be safeguarded. Even those detained under military courts desire this outcome,” added Justice Mazhar.
The bench then called Hafeezullah Niazi to the rostrum. Justice Mandokhail asked him: “Do you wish to proceed with this case?” Niazi affirmed: “Yes, I want to proceed.”
Addressing him further, Justice Musarrat Hilali asked him to consider those languishing in jails; you lack the legal standing to pursue this case. Justice Mandokhail added: “You are delaying proceedings because no loved one of yours is in custody.”
Justice Mandokhail clarified that the SC was functioning under the constitutional amendment.
He explained: “All benches are being formed under the new amendment, and even the case concerning the amendment will be heard by a bench constituted under it.”
Furthermore, Pakistan Tehreek-e-Insaf (PTI) leader Salman Akram Raja, who is a lawyer by profession, told the bench that he also had objections to certain parts of the judgment authored by Justice Munib Akhtar and would present his arguments on the matter.
Justice Rizvi inquired how the trial of those involved in the Army Public School attack had been conducted.
In response, Defence Ministry counsel Khawaja Haris explained that the trial was conducted following the 21st Constitutional Amendment.
Justice Mandokhail added that at the time, a constitutional amendment had been made to allow military courts to try civilians.
The court dismissed Hafeezullah Niazi’s request to transfer the accused to jail.
The additional attorney general argued that the trials in military courts had been completed and sought permission to announce the verdicts.
However, Justice Hilali said that this could not be allowed, as doing so would effectively resolve the question of military courts’ jurisdiction over civilian trials.
