CJP hopes no trial of civilians by army till SC verdict is out

ISLAMABAD: The Supreme Court (SC) on Monday expected that no civilian will be tried in the military courts till the final conclusion of the pending proceeding with it, hearing pleas seeking the protection of fundamental rights of the citizens and directed the federal government to provide complete details regarding persons arrested so far in connection with May 9 riots across the country.

At the same time, a larger bench of the Supreme Court, hearing petitions challenging the trials of May 9 riots suspects in military courts, disbanded for the second time after another member Justice Syed Mansoor Ali Shah recused himself from continuing with further proceedings after the Attorney General on behalf of the federal government sought recusal of the senior judge from the bench.

A six-member larger bench headed by Chief Justice Umar Ata Bandial Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahir Ali Akbar Naqvi and Justice Ayesha A Malik heard the petitions, challenging the trial of civilians in military courts.

Former chief justice Jawwad S Khawaja, former prime minister and Pakistan Tehreek-e-Insaaf (PTI) Chairman Imran Khan, Barrister Aitzaz Ahsan, members of civil societies and others had challenged before the court, the trial of civilians in military courts.

During the course of the hearing on Monday, Chief Justice Umar Ata Bandial expected that no civilian will be tried in the military courts till the final conclusion on the proceeding of the instant petitions pending before the court. “I expect that no civilian will be tried in the military courts till the final outcome of the ongoing proceedings of the matter, pending before this court”, Chief Justice Umar Ata Bandial told Attorney General (AG).

The Chief Justice said that 102 individuals who are under the custody of the military should be allowed to meet their near and dear ones.

AG Mansoor Usman Awan submitted that the trial before military courts is yet to start as he said that the investigation in this regard is still in progress. The AG, however, submitted that if these 102 people during the investigation did not fall under the jurisdiction of military courts, their cases will be tried in ordinary courts.

Salman Akram Raja, counsel for Junaid Razak, one of the petitioners told the court that family members of his petitioner have no idea of his whereabouts since the incident of May 9.

The CJP asked Attorney General to look into the matter and provide complete details by today (Tuesday) about the arrested individuals. Justice Mazahir Ali Akbar Naqvi asked the learned Attorney General what is the rationale behind the pick and choose of these individuals. The AG, however, contended that those who entered the prohibited areas were taken into custody.

Latif Khosa, counsel for Barrister Aitzaz Ahsan told the court that the arrested persons were not being allowed to meet their families and denying access to their counsels to which the CJP asked AG to look into this matter also assuring that the arrested individuals are being provided with every facility.

Earlier, when the seven-member bench resumed hearing the instant petitions, Attorney General came to the rostrum and informed the court about the government’s objections to Justice Syed Mansoor Ali Shah on the bench hearing the matter in hand. The AG submitted that as Justice Mansoor Ali Shah is the relative of former chief justice Jawwad S Khwaja, who is also one of the petitioners in the instant matter therefore it would not be appropriate for Justice Shah to continue with this bench as it may affect his conduct.

But benches cannot be constituted as per your desires”, the Chief Justice responded, adding that the government should not mock the judiciary. The Chief Justice asked the AG on which basis he was raising objections over their honourable member on the bench and further asked whether AG objected to the conflict of interest or bias.

At this, Justice Syed Mansoor Ali Shah observed that he on the very first day had asked all concerned as to whosoever have an objection, should tell the court but at that time the learned AG not objected. “I cannot sit on the bench if a doubt of bias”, Justice Shah remarked. The AG, however, submitted that personally he has no objection to Justice Shah but he was under instructions from the government.

At this the Chief Justice remarked that they have always shown restraint and did not punish those violating court’s orders. Implementing the court orders was moral responsibility on everyone however, it was not made”, the CJP remarked, adding that the petitioner former CJP is not a political person but a Darwesh. He said that ex-CJP Khawaja was not a political person. The Chief Justice recalled that there was a series of objections, repeatedly raised on the constitution of bench.

“You are accusing us with like-minded judges but we have responded with restraint”, the CJP continued, adding that earlier there was a repeated debate whether the verdict on election was a majority or minority but now you again resorted to make the bench controversial.

The Chief Justice said that even, they avoided to take strict action of contempt of court proceedings against the government for its failure to comply with their order, passed on holding of elections.

The apex court is not using a stick, but in what capacity are others using the stick?, the Chief Justice asked the AG and further questioned as to whether they should ask the prime minister for raising objections with regard to relationship. The Chief Justice said that their member on the bench is not a kind of a person to influence the decision on the basis of a relationship. Therefore avoid to taint the image of country’s highest court and don’t ridicule it as well”, the Chief Justice admonished the AG.

Meanwhile, Justice Syed Mansoor Ali Shah recused himself from the bench. Counsels for the petitioners however, requested Justice Syed Mansoor Ali Shah to continue with the bench, adding that being the case of basic fundamental rights, objections should not be made on the bench.

Justice Syed Mansoor Ali Shah however, observed that he knows his conduct well, adding that it would not be appropriate for him to further continue with the bench once objections are raised against him.

At this Faisal Siddiqui, counsel for the petitioners belonging to civil societies said that Justice M Arkani had once while sharing a joke with his students, had said that when if you start losing the case, raise objection on the bench. He submitted that the federal government is doing the same now.

Later on, the bench reassembled with a six-member bench. Hamid Khan, lead counsel for PTI appraised the court that a number hadn’t been assigned to their petition. At this, the Chief Justice told the learned counsel that the court would take up the issue later on.

“We have just come back after recovering from a setback”, the CJP told Hamid Khan, adding that instead of presenting valuable arguments, other tactics are being used here,” the CJP remarked.

The Chief Justice told the senior counsel that his client had made several prayers in his petition. Hamid Khan however, assured the court that he would presents his argument only against the military courts.

Meanwhile, Salman Akram Raja commenced his arguments and cited the cases dealt by the British and American constitutions. The Chief justice however, asked the counsel as to whether the military courts has commenced trials but the counsel replied in negative to which the CJP asked him to avoid presenting his arguments, on the basis of assumptions.

The Chief Justice asked the counsel to keep himself to the most relevant issues, adding that today (Tuesday) is the last working day of the apex court therefore it would be appropriate to argue on the most relevant points.

The Chief Justice asked Raja as to how Article 175(3), which mandates the complete separation of the judiciary from the executive, was applicable in this case.

Salman Akram Raja however, contended that the said article was based on the right to fair trial underlined in Article 9 and 10 hence he submitted that no one can be deprived of the right to fair trial as well.

The Chief Justice however, asked Raja to show a judicial precedent which stated that Article 175 was linked with the Army Act.

Justice Ayesha A Malik asked the learned counsel as to whether a civilian can be tried in military courts or not? The judge observed that the petitioner has challenged the provisions of the Army Act but did not give reasons for doing so.

Salman Akram Raja however, submitted that the apex court had laid down the principle that judicial affairs can only be run by the judiciary, adding that no one else can exercise judicial powers under Article 175(3).

Advancing his arguments, Salman Akram Raja contended that are two kinds of civilians. One--he submitted are those renders a service for the armed forces, and such persons are bound to follow military discipline. The second type of people, the counsel submitted that are those who have nothing to do with the armed forces. Complete civilians could only be tried by a judge appointed under Article 175(3).

Chief Justice asked the learned counsel as to whether the verdicts, issued by the military courts not be challenged?

The counsel replied that the verdicts could be challenged before the army chief or a committee formed by him as well.

You want to say that military courts are a parallel system and can’t be called courts”, Justice Mazahir Ali Akbar Naqvi asked the counsel.

Raja replied in the affirmative, adding that civilians are not ensured basic rights during military trials. He contended that as per Army Act, trials are conducted in military court on disciplinary violations however, the trial of a civilian in military courts is not a matter of disciplinary violations.

Later, the court adjourned the hearing for today (Tuesday).