Trial of civilians in military courts: Setback to SC bench as two judges refuse to sit on it

ISLAMABAD: The Supreme Court Thursday declined to grant a stay on the trial of civilians in military courts but directed the federal government to submit complete data on the people arrested for their alleged involvement in the May 9 incidents.

A seven-member larger bench of the apex court — headed by Chief Justice Umer Ata Bandial — heard a set of identical petitions, challenging the military’s decision to try civilians under the Army Act, 1952. The other members of the bench include Justice Ijazul Ahsen, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayed Mazahar Ali Akbar Naqvi and Justice Ayesha Malik. The bench conducted the preliminary hearing in the instant petitions.

The court declined the request of Latif Khosa seeking a stay on the trial of civilians by the military courts. Chief Justice Umer Ata Bandial observed that the answer for all issues did not lie in issuing a stay order. The court, however, sought from the federal government a complete record of all the arrested persons. The court directed Attorney General Mansoor Usman Awan to provide information about the total number of detainees in civil and military custody.

The court further directed the AG to submit how many of them were women and juveniles, besides details how many advocates and journalists were in civil and military custody. The court issued notices to all the respondents in identical petitions challenging the trial of civilians in military courts.

It is pertinent to mention here that Barrister Aitzaz Ahsan had made Prime Minister Mian Shehbaz Sharif, former prime minister Imran Khan, Defence Minister Khwaja Asif, Interior Minister Rana Sanaullah, secretaries defence, law and Justice, Cabinet Division and chief secretaries and IGPs of Punjab, Khyber Pakhtunkhwa and Balochistan as respondents. “Learned attorney general we would not give a decision without hearing you in detail; therefore, the court should be informed as to how many people are in the custody of civil and military authorities,” Chief Justice Umer Ata Bandial told the law officer. He observed that lawyers should not be harassed and arrested journalists should be freed. The CJP further observed that one lawyer was kidnapped for six days while another was taken to the police station.

The chief justice further observed that it was the legal right of every accused person to appoint a lawyer to plead his case be it a civilian or a military one. “We no longer have the right to privacy guaranteed by the Constitution as all the meetings and telephonic conversations are also being monitored,” the Chief Justice remarked. The chief justice directed all the parties to keep the arguments short as the court was hearing the case amid summer vacations. The chief justice had constituted a nine-member larger bench for hearing the instant matter; however, it was disbanded after two senior-most judges of the apex court, including Justice Qazi Faez Isa and Justice Sardar Tariq Masood, while expressing reservations, refused to sit on the bench. Justice Qazi Faez Isa, the designated chief justice, said he was not recusing from the proceedings on the instant matter but he could not sit on the bench till the announcement of judgment on the Supreme Court (Practice and Procedure) Act 2023. Justice Sardar Tariq Masood also endorsed the view of Justice Isa.

Meanwhile, Chief Justice Umer Ata Bandial, heading the larger bench hearing the identical petitions adjourned the proceedings and later on again assembled at 1:30pm, trimming down the bench to seven-member. Four petitioners — including former prime minister and Chairman PTI Imran Khan, PPP leader Barrister Aitzaz Ahsen, former chief justice of Pakistan Justice Jawwad S Khwaja and representatives of civil societies — have challenged the trial of civilians in the military courts. They prayed the apex court to declare that Sections 2(1)(d)(i) and (ii) of the Pakistan Army Act 1952 (the “Impugned Sections”) were inconsistent with the fundamental rights conferred by the Constitution and were void and be struck down.

Barrister Aitzaz Ahsen prayed the apex court to constitute a full court to hear his petition. After the seven-member bench resumed hearing, Sardar Latif Khosa, counsel for the petitioner Barrister Aitzaz Ahsan, submitted before the court that the Formation Commanders’ Conference had stated that there was undisputable evidence regarding the events of May 9. Chief Justice Umer Ata Bandial asked Khosa whether the trial of civilians in military courts had commenced. Latif Khosa replied in the affirmative adding that either a colonel or a brigadier will conduct the trial. Khosa submitted that he had no sympathies for those who attacked the military installations adding that he was not demanding that they should be released. “Those who have committed crimes must be punished but in accordance with the law,” he contended

Justice Syed Mansoor Ali Shah asked Khosa if any of the affected persons had approached the court for relief. Khosa replied that he had no information in this regard Justice Mazahir Ali Akbar Naqvi observed that the anti-terrorism courts were already empowered to hear the cases that had been registered. At this, Khosa replied that it was their stance that cases should be heard in the anti-terrorism courts and not the military courts. He informed the court that around 9,000 people had been arrested. “We are stuck to the facts as countless names were included in the cases that were registered”, the CJP observed.

Justice Syed Mansoor Ali Shah observed that a request had been forwarded to the court or a magistrate pertaining to the trial of civilians in military courts. The courts may have had a reason for allowing the cases to be transferred,” the judge remarked. Justice Yahya Afridi pointed out to the counsel that the documents he had attached with his petitioner (Aitzaz Ahsen) were incomplete. Justice Afridi asked Khosa about the volume of cases sent to the military courts. Khosa replied that 10 from one place, and 20 from another had been sent. At this, Justice Afridi observed that the learned counsel was giving arguments of general nature. Justice Munib Akhtar asked Latif Khosa whether the case could be heard in the anti-terrorism courts under the Official Secret Act to which Khosa replied in the affirmative. Justice Ayesha A Malik observed that only military personnel could be tried in military courts and the same was not applicable to civilians.

Later, the court adjourned the hearing until Friday (today). Faisal Siddiqui, representing petitioner Karamat Ali will commence his arguments. Earlier, when the nine-member bench — including Justice Qazi Faez Isa and Justice Sardar Tariq Masood — resumed the hearing, chief justice-designate Justice Qazi Faez Isa said he was surprised to see his name on the cause list for this hearing at 8 pm the other day. “I am not part of the bench hearing the [case related to] Supreme Court Practice and Procedure Bill, so I will not make any remark about it,” Justice Isa said. He observed that it should be seen as to what the SC rules say. Article 175/2 of the Constitution gives the court powers to conduct a hearing.

Referring to the March 29 order, Justice Isa recalled that a suo motu notice had been fixed for hearing under his bench and he had held that the rules should be made in Article 184/3 of the Constitution. “However, it was a surprise and shock that on March 31, (SC registrar) Ishrat Ali issued a circular ignoring the March 15 order of the Supreme Court,” Justice Isa said and questioned if this was the importance of a decision made by the apex court. Justice Isa said after that, a six-member bench was formed, which endorsed the circular and withdrew his decision. “My friends are certainly more capable than me, but I will decide according to my faith,” the senior-most judge added.

Justice Isa questioned as to why no judge from the bench hearing the main case was part of the 6-member bench for review adding that his note on the six-member bench was removed from the apex court’s website. He further recalled that the Chief Justice of Pakistan had asked him on May 16 whether he wanted to remain restricted to the chamber work. Explaining why he preferred chamber work, Justice Isa said a law had been made for the constitution of benches. Justice Isa said that he was not pointing a finger at anyone, but he was caught between the choices of joining the bench or following the law. “I believe the law can be rejected, not suspended,” Justice Isa said with regard to the stay order on the Supreme Court (Practice and Procedure) Act, 2023. Justice Isa said when he was asked about chamber works, he wrote a five-page note. “I believe that everything should be announced in the open courts to avoid rumours,” he said and read out his note in the court, which was removed from the top court’s website.

Endorsing the stance of Justice Isa, Justice Sardar Tariq Masood said he and the senior judge (Justice Isa) could only become part of the benches once an order was issued on the Supreme Court (Practice and Procedure) Act, 2023. Justice Masood seconded Justice Isa’s reservations questioning that “should the law be deemed ‘correct’, then what would happen to the appeals on this case?” At this, Latif Khosa submitted that if both the senior judges did not hear the case, then what will happen to the 250 million people. Justice Sardar Tariq Masood, however, asked the learned counsel why he didn’t think about them before.

Meanwhile, Barrister Aitzaz Ahsan, urged Justice Isa to hear the case. “I have great respect for you, but cannot go against the law”, Justice Isa told Aitzaz Ahsan. Aitzaz asked Justice Isa to hear this important matter for the sake of his (Justice Isa) home. “This is the Supreme Court, not someone’s home,” Justice Qazi Faez Isa replied.

Chief Justice Umer Ata Bandial observed that two senior judges had raised questions to the bench with regard to Supreme Court (Practice and Procedure) Bill, 2023. The chief justice said maybe, they did not know that the attorney general had sought more time in this case. He further said that the bench had been constituted according to the Supreme Court rules adding that the apex court was present to make decisions in favour of God.