Pakistan's top court puts spotlight on families of civilians awaiting military trials

The constitutional bench of Pakistan's Supreme Court on Monday engaged in intense courtroom exchanges as it heard cases challenging the trial of civilians in military courts.

Justice Mohammad Ali Mazhar addressed Hafeezullah Niazi, a journalist whose son Hassaan Niazi has been in military custody since his arrest last year. “Your son is in jail. Do you want to fight your case?” Mazhar asked.

“Yes, I want to fight my case,” Niazi responded. Hassaan Niazi, a nephew of former Prime Minister Imran Khan, was detained after evading arrest for nearly four months in connection with the May 9, 2023, riots, especially the ransacking of the Lahore corp commander's residence.

“When Corps Commanders use their residences as offices, do they declare them as such? How accurate is it that this idea came later, that the Corps Commander’s residence was also an office?” Justice Musarrat Hilali asked, raising questions about military administrative practices.

“It is entirely incorrect to say that civilians cannot be tried in military courts,” argued Khawaja Haris, counsel for the Ministry of Defense.

Two-pronged argument

Senior lawyer Aitzaz Ahsan had filed the petition, requesting the hearing be postponed until a decision is reached on challenges to the 26th Constitutional Amendment. The bench dismissed the request on Monday.

The amendment, passed in October, allows parliament to appoint the chief justice of Pakistan. While politicians have lauded the move, it has faced resistance from the judiciary, which views it as an attempt to curtail its independence.

Some legal experts have noted that petitions challenging military trials are closely tied to the validity of the amendment.

The establishment of military courts followed unrest on May 9, 2023, when supporters of former Prime Minister Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) party attacked government and military installations after Khan’s first arrest in a corruption case.

Hundreds of PTI leaders and supporters were detained after the riots, with many facing military trials for their alleged involvement in the violence. Concerns have also been raised about the possibility of Khan himself facing a military trial.

In September, Khan filed a petition in the Islamabad High Court to challenge the prospect of his trial in a military court. The court dismissed his plea after the government stated it had not yet decided on pursuing such action.

Legal challenges

Former Chief Justice Jawwad S. Khawaja filed an appeal in the Supreme Court last week, urging the court to first determine the constitutional validity of the 26th Amendment before addressing constitutional cases such as the military trials of civilians.

Khawaja argued that the amendment, which significantly altered the structure of the Judicial Commission of Pakistan, reduced judicial representation and expanded executive influence. He contended that the legitimacy of the bench hearing these cases depends on the amendment’s validity.

“If the amendment is declared unconstitutional, any rulings by this bench could be invalidated, undermining the judicial process,” Khawaja said.

He emphasized the public importance of the appeals, noting that the trial of civilians under military jurisdiction raises fundamental questions about judicial independence and citizens’ rights. Resolving the constitutional challenge, he argued, is essential to ensuring justice is delivered and perceived to be delivered.

Judicial and public concerns

Khawaja cited a letter from Justice Syed Mansoor Ali Shah to the chief justice, dated December 5, questioning the amendment’s legitimacy and its impact on judicial appointments and decisions. Justice Shah called for prioritizing the constitutional challenge to restore credibility to the judiciary.

Khawaja also highlighted the plight of more than 80 civilians in military custody. He claimed they were being falsely detained, with authorities citing a non-existent six-member bench order restraining the military from passing final judgments.

The petition called for a reassessment of the constitutional balance between the judiciary and executive powers, underscoring the broader implications for citizens’ rights and judicial independence in Pakistan.