19 February 2025
By Rana Malhi
ISLAMABAD
The intra court appeal (ICA) hearing against the decision on civilians’ trials in military courts, was held in the Supreme Court on Wednesday, February 19. The seven-member constitutional bench is being headed by Justice Aminuddin Khan.
At the very beginning of the hearing Latif Khosa who is the counsel of petitioner Aitzaz Ahsan, said that he would present arguments first, instead of Uzair Bhandari, Imran Khan’s lawyer. Justice Aminuddin Khan assured him there was no objection as to who argued first.
Aitzaz Ahsan objected to Salman Akram Raja’s arguments from the previous day, asserting he had not authorized him to differ from Justice Muneeb Akhtar’s ruling. Justice Muhammad Ali Mazhar clarified that the disagreement only concerned a paragraph related to Article 63A. Salman Akram Raja maintained that he stood by his arguments, emphasizing that the media had ‘misrepresented his stance’.
Justice Naeem Akhtar Afghan advised against being influenced by social media, stating that neither he nor the court paid attention to it. Justice Jamal Mandokhail emphasized responsible reporting by the media. Justice Musarrat Hilali noted that many news reports about her surfaced, but her position prevented her from responding.
Justice Aminuddin Khan remarked that the court’s questions aim to understand different perspectives and could even align with the arguments presented.
Following this, Latif Khosa began his arguments. Aitzaz Ahsan raised an objection regarding the renumbering of his petition, arguing that his was filed first but had been assigned the number of a later petition by former Chief Justice Jawad S. Khawaja. Justice Aminuddin Khan advised caution, stating ‘such objections’ could lead to ‘unnecessary complications’.
Khosa asserted that the nation was closely watching the case and that it had put the Supreme Court under scrutiny. However, Justice Aminuddin Khan reiterated that the Supreme Court was not on trial and would rule according to the Constitution and the law.
Historical Precedents
Latif Khosa argued that earlier rulings must be considered when taking judicial decisions. Justice Jamal Mandokhail prompted him to focus on the legal points, particularly the constitutional standing of Section 2D. Justice Aminuddin Khan instructed Khosa not to mix Section 2D with the events of May 9 and 10 but instead assess its independent legal status.
Khosa contended that the Constitution guarantees fundamental rights and that Section 2D cannot be upheld, emphasizing the need to evaluate military courts in a historical context.
He referenced Islamic teachings on judicial independence, asserting that even during the ‘era of the Islamic caliphs;, judiciary and governance were separate.
″Khosa claimed that Section 2D, introduced in 1967, contributed to the division of Pakistan and that the Hamoodur Rahman Commission report documented growing institutional resentment. Justice Mandokhail questioned whether any constitutional limitations exist on legislation.″
Khosa argued that special courts require constitutional amendments, and civilians cannot be tried in military courts as these trials lack judicial independence. He suggested forming a judicial commission for the events of May 9. Justice Aminuddin Khan interrupted, advising Khosa once again to remain focused.
Khosa maintained that he was not representing any political party but had always advocated for the rule of law. He asserted that secret military trials contradicted Islamic principles. Justice Aminuddin Khan countered that there was a transparent trial procedure in place, and deviations from it were a separate issue.
Justice Jamal Mandokhail questioned why Khosa had not taken steps to repeal Section 2D during his tenure in various government positions.
Meanwhile Justice Musarrat Hilali pointed out that different narratives were presented in Parliament and the court, emphasizing that the fall of Dhaka had multiple causes, not just military trials.
Khosa argued that the Supreme Court should rule on the matter so that its decision could be implemented, adding that abolishing civilian trials in military courts would win public support. Justice Hilali challenged him on the approval of the 26th Amendment, asking which lawmaker had resigned in protest. Khosa named Akhtar Mengal.
After a break, Justice Hilali reiterated that the fall of Dhaka was not solely due to special trials, which occurred much later. Khosa responded that a strong military should have public support and be kept out of trial matters.
Justice Muhammad Ali Mazhar questioned why special courts were not annulled under the 21st Amendment. Khosa replied that their temporary nature due to wartime conditions prevented this. Justice Mandokhail then asked whether the continuation of special courts had eradicated terrorism.
Khosa lamented that newspapers reported targeted killings and that the 18th Amendment had fueled provincialism. He stressed that the military should remain within its constitutional boundaries.
Justice Hilali advised Khosa to address such concerns in Parliament, while Justice Mandokhail reminded him that these were legislative matters. Khosa claimed his microphone was often turned off in Parliament. Justice Mandokhail questioned whether he had opposed constitutional amendments through voting, to which Khosa responded that PTI had not participated in the voting process.
Justice Mandokhail dismissed further political discussions, urging Khosa to stay on topic. The hearing was adjourned for the next day.