ISLAMABAD: Chief Justice of Pakistan Nasirul Mulk on Thursday asked the federal government’s counsel to cite a precedent which allows civilians to be tried in military courts.
Addressing the 17-judge bench hearing the 18th and 21st Constitutional Amendment case, counsel for the federal government Khalid Anwar cited the example of Guantanamo Bay in the United States, where military courts have been established to try civilians.
The chief justice told Anwar that Guantanamo Bay is not a good example because people have been implicated without any evidence against them and are released from their sentence years later.
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Justice Asif Saeed Khosa also said that these are combating enemies and not citizens.
Further, Khosa gave two examples; one of former UK Prime Minister Winston Churchill, who stated that if the courts are functioning, then they would not lose the war. The other example was of Guantanamo Bay, in which he said: “we are in war, forget about justice.”
Meanwhile, on the query of the full court, Anwar said that his first argument is that the top court has no power to interfere in the functioning of military courts in view of 21st constitutional amendment.
He said that if his argument is rejected, then he will say that the Supreme Court has the power to examine the impacts of the 21st constitutional amendment but in conclusion, the court should adopt the policy of judicial restraint.
“My personal view is that the Supreme Court’s jurisdiction available to review military courts verdicts but his client’s stance (federal government) is that the court has no power to do the same”, he said.
Justice Mian Saqib however asked him that if the federal government admits that the jurisdiction of the top court is not ousted to examine the military courts functioning, then the court will examine the 21st constitutional amendment case differently.
Justice Khosa said that like the United States, the president of Pakistan should also have the legal power to declare war so that laws are affected.
He also questioned that whether in the USA, the president can pass an order, through which a civilian can be tried by military court.
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