ISLAMABAD: The seven-member Constitutional Bench headed by Justice Aminuddin resumed the hearing of civilians’ trial in military courts.
Convicted criminal Arzam Junaid’s counsel Salman Akram Raja had completed his arguments yesterday. In today’s hearing, Aitzaz Ahsan’s lawyer Latif Khosa came to the rostrum and began arguments.
Khosa informed the court that Uzair Bhandari was supposed to give arguments today, but the plan has changed. Justice Aminuddin said that the court has no objection on the order of the order of presenting arguments.
At this point, Aitzaz Ahsan stood up and objected to Salman Akram Raja’s arguments from yesterday. He said, “Salman Akram Raja is also my lawyer. [He] had disagreed with Justice Munib Akhtar’s decision yesterday. I had not given any such instructions to Salman Akram Raja.”
“I completely agree with Justice Munib Akhtar’s decision,” Aitzaz Ahsan said.
Justice Muhammad Ali Mazhar said to Aitzaz Ahsan, “The objection is probably only to Article 63A.” Salman Akram Raja concurred saying that he disagreed with only one paragraph of Justice Munib’s decision. “Yesterday’s arguments were given with regards to Arzam Junaid and I stand by them,” Raja said.
Addressing Justice Naeem Akhtar Afghan, Raja said, “The impression was given in the media as if I don’t know what I have said. Your question made headlines that there is no prohibition of court martial of civilians in international law.”
Justice Afghan said, “The question that was asked is in front of everyone. Don’t concern yourself with social media, we don’t concern ourselves with it either.”
“We should neither be influenced by social media nor take decisions due to it. The media should also be responsible while reporting,” Justice Jamal Mandokhail added.
Justice Musarrat Hilali said, “There seems to be a lot of news against me. I want to answer it but my position does not allow me to do so.”
In response, Raja said that he stands by his arguments.
Justice Aminuddin said, “We ask questions only to understand different angles. We may agree with your arguments as well.”
Afterwards, Latif Khosa formally started his arguments. Moments later, Aitzaz Ahsan raised objection to the change in the number of his petition, saying that he had filed his petition earlier. “Former chief justice Jawad S Khawaja’s petition was filed later but was allotted my case number,” Aitzaz Ahsan said.
Justice Aminuddin stopped Aitzaz Ahsan, saying “Don’t do this, such things will lead you somewhere else.”
Latif Khosa said, “The eyes of the entire nation are on this case. The Supreme Court is under trial because of this case.”
Justice Aminuddin retorted, “The Supreme Court is not under trial.” He added, “The court has to make decisions according to the constitution and the law.”
Latif Khosa said, “History reviews judicial decisions.”
Justice Mandokhail, addressing Khosa said, “Your spectacles are here. Start arguments on legal points. First, give arguments on the legal status of Section 2D.” Justice Aminuddin added, “Do not mix Section 2D with May 9 and 10. First, present an overview of the independent status of these sections. Does Section 2D apply to May 9 and May 10 or not? I will assist on this question later.”
Khosa answered that the Constitution has provided protection for fundamental rights. “Section 2D cannot be maintained. The formation of military courts should be seen in a historical context.”
The counsel said, “The law on Section 2D was brought in 1967. Pakistan broke up due to Section 2D. The country broke up and the second part became Bangladesh. The Hamoodur Rehman Commission report wrote that hatred against the institution arose from there.”
Justice Mandokhail asked, “Is there any prohibition in the constitution on making laws?”
Khosa replied, “The 21st Amendment had to be brought for military courts. Civilians cannot be tried in military courts. Judges and trials are not independent in military trials. This is why there was talk of forming a judicial commission on May 9.”
“You have gone to the other side again,” Justice Aminuddin retorted again. Khosa replied, “I am not representing any [political] party. I have fought for the rule of law all my life. Section 2D is against Islamic teachings. Military trials are kept secret.”
“You have been a federal minister, senator, member of the assembly, governor and attorney general. What steps did you take to abolish the 2D section while holding these positions?”
Justice Mandokhail to Latif Khosa
Justice Aminuddin said, “Khawaja Haris informed [the court] that a transparent trial has a complete procedure. [Now] if the procedure is not followed, that is a separate issue.”
Khosa said, “What difference does it make to [just] write a transparent procedure?”
Justice Mandokhail said, “If we look into [your] history, you have a very long profile. You have been a federal minister, senator, member of the assembly, governor and attorney general. What steps did you take to abolish the 2D section while holding these positions?”
The justice added that as far as the bench is concerned, the parliament may abolish this section today, but don’t say something else here than you say in the parliament.
Justice Hilali said that military courts were formed later, the reasons for separation of Dhaka were different. Khosa answered, “The way 26th constitutional amendment was passed is in front of you. You give a decision on it, and we will implement the decision. The people will become your fans after you end civilians’ trials.”
Justice Hilali asked, “Which member resigned on the 26th Amendment?” Khosa replied that Akhtar Mangal resigned from the assembly after the amendment.
Latif Khosa referenced the International Court of Justice (ICJ) report. Justice Mandokhail asked, “Do terrorist incidents also occur in the ICJ member countries?” Khosa answered, “Of course, terrorist incidents occur there.”
Justice Hassan Azhar Rizvi asked, “Do military properties get targeted there?”
Khosa started talking about Army Public School (APS) Peshawar, but Justice Mandokhail stopped him saying that this decision is pending in the Supreme Court.
Justice Muhammad Ali Mazhar asked, “Has the ICJ report been reviewed by the parliament? The report has asked for the right to appeal on military trials.”
Addressing the counsel, Justice Mandokhail added, “You should have brought a private member’s bill on this report.”
Justice Rizvi said, “This report is of 2019. Today you are worried. Your party did not have any worries in 2019.”
Khosa said, “We were on the opposition side even then.”
Justice Aminuddin spoke on Mukhtaran Mai case. He said, “Sometimes the country is defamed by small incidents. The country was defamed so much in the Mukhtaran Mai case.”
After a brief break, Uzair Bhandari – lawyer of Pakistan Tehreek-e-Insaf’s (PTI) founder Imran Khan – began his arguments.
He said, “I fully support the decision to declare trials in military courts null and void. The army is part of the executive, it does not have judicial power. The army cannot go beyond the authority of Article 245.”
Justice Aminuddin asked, “Are you saying there is no need to abolish 2(D)1(2)?”
Bhandari replied, “Times are changing, FB Ali case is no longer relevant. I will begin the arguments with the jurisdiction of intra-court appeals.”
He said that the jurisdiction of intra-court appeals is limited, adding that there is no difference in the scope of review and intra-court appeal. “In review, the decision can be null and void if it is unconstitutional or the record is not reviewed.”
Justice Aminuddin said, “You are limiting our authority.” Bhindari answered, “In the Practice and Procedure case, the court itself said that intra-court appeal is an internal arrangement. If the court had accepted our opinion in the Practice and Procedure case, the situation would have been different today.”
Justice Mazhar said, “According to Salman Akram Raja, the court can disagree with the decision and its reasons. Personally, I agree with Raja. The court should act carefully in intra-court appeals. We cannot call the decision of five judges wrong nor can we give observations against fellow judges.”
Justice Aminuddin added, “The constitutional bench will also decide on the jurisdiction of appeals.”
After these arguments, the Constitutional Bench adjourned the hearing until tomorrow. Bhandari’s arguments will continue tomorrow as well.