Prioritize 26th Amendment pleas over military trial’s case, urges Pakistan’s ex-top judge

Former Chief Justice of Pakistan Justice Jawwad S. Khawaja filed an appeal in the Supreme Court on Friday, urging it to prioritize the constitutional validity of the 26th Amendment before proceeding with cases challenging the trial of civilians in military courts.

The decision to establish military courts in Pakistan followed the unrest of May 9, 2023, when supporters of former Prime Minister Imran Khan’s Pakistan Tehreek-e-Insaf (PTI) party attacked government and military installations after his brief arrest in a land corruption case.

Hundreds of PTI leaders and supporters were detained after the riots, and many are facing military trials over their alleged involvement in the violence.

Concerns about military court trials have also extended to Khan, whose supporters fear he could face similar proceedings.

In September, Khan filed a petition in the Islamabad High Court (IHC) to challenge the possibility of his military trial. However, the court dismissed the plea after the government stated it had yet to decide on pursuing such action.

The same month, Pakistan’s military spokesperson hinted at the prospect of Khan's trial, warning that exploiting military personnel for political gains could lead to legal consequences.

In his application, Khawaja argued that the questions raised in the military trial appeals are intrinsically linked to the amendment, passed on October 21, 2024, which significantly altered the structure of the Judicial Commission of Pakistan (JCP). The amendment reduced judicial representation while expanding executive influence.

“The legitimacy of the constitutional bench hearing these cases is contingent on the validity of the 26th Amendment,” Khawaja stated. He warned that if the amendment is declared unconstitutional, any rulings by this bench could be invalidated, potentially undermining the judicial process.

Khawaja underscored the public significance of the appeals, emphasizing that the trial of civilians under military jurisdiction raises fundamental questions about judicial independence and citizens’ rights.

He said that resolving the constitutional challenge to the amendment was essential to ensuring that justice is both done and perceived to be done.

Strengthening his argument, Khawaja cited a December 5 letter from Justice Syed Mansoor Ali Shah to the Chief Justice of Pakistan. In the letter, Justice Shah questioned the amendment’s legitimacy, particularly its implications for judicial appointments and decisions. Shah urged prioritizing the constitutional challenge to restore certainty and credibility to the judiciary.

Khawaja also highlighted the plight of over 80 civilians currently in military custody. He claimed that they are being falsely detained under the pretext that a six-member bench’s order restrains the military from passing final judgments. However, he pointed out that no such order exists to prevent the government from releasing these civilians or transferring them to civilian law enforcement.

Justice Khawaja’s petition also called for a fundamental reassessment of the constitutional balance between the judiciary and executive powers, highlighting the far-reaching implications for citizens’ rights and the independence of Pakistan’s judiciary.