Ex-CJP objects to bench hearing appeals against military trials verdict

ISLAMABAD: Former Chief Justice Jawwad S. Khawaja raised objections on Thursday to the bench headed by Justice Sardar Tariq Masood hearing the Intra Court Appeals (ICAs) against the judgment declaring the trials of 103 civilians in military court as unconstitutional.

In a letter addressed to the committee constituted under Section 2 of the Supreme Court Practice and Procedure Act, 2023, the former chief justice contended that the bench has not been constituted properly under applicable law or is in violation of accepted principles of justice. The former Chief Justice contended that to ensure compliance with the provisions of the law, a seven-member bench, as decided by the Committee in order of seniority, should be constituted to hear the ICAs.

“I reserve all my rights, including my right to object to any bench constituted to hear the ICA in my petition, on the ground that it has not been constituted properly under applicable law or is in violation of accepted principles of justice,” Justice Jawwad S. Khawaja wrote.

He prayed that the bench refer the matter back to the Committee constituted under the Supreme Court Practice and Procedure Act 2023 for reconstitution of the bench, which is to hear these appeals. He further requested that, in the interest of transparency, a copy of this communication be made public. Earlier, the former chief justice, through an application, had sought recusal of Justice Sardar Tariq Masood from the bench hearing the Intra Court Appeals filed against the judgment declaring the trials of civilians in military courts.

It is pertinent to mention that former chief justice Jawwad S. Khawaja was one of the petitioners, challenging the trials of civilians in military courts. On December 13, a six-member larger bench of the apex court headed by Justice Sardar Tariq Masood had conditionally suspended judgment on October 23, declaring the trials of 103 civilians in military courts as unconstitutional.

The larger bench had conducted a preliminary hearing on the intra-court appeals filed against its judgment of October 23. The federal caretaker government, Ministry of Defence, and governments of Punjab, Khyber Pakhtunkhwa (KP), and Balochistan had filed ICAs under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023, read with Article 184(3) of the Constitution, against the order passed by the apex court in the petitions, challenging the trial of civilians in military courts.

It was prayed in the ICAs that the trials of 103 civilians allegedly involved in attacking the military installations on May 9 should be continued. The court had reserved the verdict on the plea of the Attorney General and later announced its verdict, conditionally suspending its October 23 judgment holding that the trials of 103 civilians in military courts would continue but the decision of the trials of May 9 suspects would be subject to the final orders of the apex court order on Intra Court Appeals. The court had issued notices to the respondents and adjourned the hearing on intra-court appeals until the third week of January. On October 23, the Supreme Court had declared the trial of civilians in the military courts unconstitutional and held that 103 persons and others who may be placed about the events arising from May 9th and 10th could be tried by criminal courts established under the ordinary or special law of the land.

A five-member larger bench of the apex court headed by Justice Ijazul Ahsen and comprising Justice Munib Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Akbar Naqvi, and Justice Ayesha A Malik had announced the decisions in petitions challenging the trials of civilians in military courts. Former Chief Justice of Pakistan Justice Jawwad S. Khawaja, former Prime Minister and PTI Chairman Imran Khan, Barrister Aitizaz Ahsen, the Supreme Court Bar Association (SCBA), Karamat Ali, Zaman Khan Vardag, and Junaid Razzak had challenged in the apex court under Article 184(3) of the Constitution the trial of civilians in military courts.

On December 11, Justice Ijazul Ahsen, senior judge of the Supreme Court and Member of the Committee, constituted under the Supreme Court (Practice and Procedure) Act 2023, said in a letter addressed to Chief Justice Qazi Faez Isa had said that as agreed, a seven-member bench was not constituted for hearing the appeals against SC judgment, declaring the trial of civilians in military courts. Justice Ahsen had written letters to the Chief Justice of Pakistan and the Secretary about uploading the wrong minutes of the meeting constituted under Section 2 of the Supreme Court (Practice and Procedure) Act, 2023, on the website, as well as ignoring his consultations as a Member of the Committee for the fixation of cases before the benches. The judge had written a letter to the Secretary of the Committee regarding the minutes of the 5th meeting of the Committee held on December 7, 2023, as well as Chief Justice of Pakistan Justice Qazai Faez Isa.