May 9 violence cases: SC rejects govt plea to let military courts give verdicts

ISLAMABAD: The Supreme Court on Monday rejected a government plea that sought allowing military courts to announce verdicts in the cases of May 9 violence suspects.

A seven-member Constitutional bench Formed under the 26th Constitutional Amendment headed by Justice Amin-ud-Din Khan heard several cases. Other members of the bench were Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hassan Azhar Rizvi, Justice Naeem Akhtar Afghan, Justice Shahid Bilal Hassan and Justice Musarat Hilali.

The bench heard the intra court appeals (ICAs), filed by the federal government and Sindh government against the apex court’s judgement declaring the trial of civilians in military courts as unconstitutional.

The bench declined the request made by the additional attorney general (AAG) seeking to allow the military courts to announce decisions in the cases related to May 9 incident’s suspects.

Justice Musarat Hilali observed that giving permission would mean recognising the authority of the military courts. Similarly, the bench also rejected the plea of former Chief Justice Jawad S Khwaja, one of the petitioners, in the case seeking deferring the hearing in the matter till the decision on various identical petitions filed in the Supreme Court challenging the 26th Constitutional Amendment.

It is pertinent to mention here that Pakistan Tehreek-e-Insaf (PTI), Jamaat-e-Islami (JI) and various bar associations had challenged the 26th amendment with the prayer to constitute a full court for hearing the petitions. During the course of hearing, the bench imposed fine of Rs20, 000 on petitioner Jawad S Khwaja for filing the unnecessary plea.

During the hearing regarding trial of civilians in military courts, Ahmed Hussain, counsel for Jawad S Khwaja, appeared before the court and submitted that they had filed a civil miscellaneous application (CMA) praying for deferring the hearing of ICAs in military courts case until the decision on petitions challenging the 26th Constitutional Amendment

The court asked the counsel as to whether he recognised the Constitutional Bench to which he replied that he didn’t recognise the jurisdiction of the Constitutional Bench, adding that it had been constituted by the Judicial Commission which was established under the 26th amendment, and if the amendment was set aside then the decisions taken by the Constitutional Bench would also have no effect.

At this, Justice Mandokhail asked the counsel that he could then leave the courtroom when he did not recognise the bench. Justice Mazhar, while addressing the counsel, observed that delaying tactics were being used on the counsel’s behalf.

“Even if the 26th amendment is repealed, judicial decisions are protected,” Justice Mazhar remarked. Justice Mandokhail clarified that the Constitutional Bench of the Supreme Court was working only under the constitutional amendment, adding that whatever benches are being formed are being formed under the new amendment. The petitions challenging the 26th amendment would also be heard by the bench formed under the amendment.

During the hearing, Justice Mazhar asked if the people whose relatives were in the custody for military court trials wanted the same. Justice Mandokhail asked Hafeezullah Niazi that his son was in jail, so whether he wanted to pursue the case? Niazi replied in affirmative.

Meanwhile, the court, while rejecting the request made for halting the case, imposed a fine of Rs20,000 on Jawad S Khwaja. At the outset of hearing, Khwaja Haris, counsel for the Defence Ministry, while arguing before the bench, submitted that it was wrong to say that the civilian suspects could not be tried in military courts, adding that the Army Act also applies to the employees of private companies working with the armed forces.

Justice Mandokhail remarked that they were a different type of civilians who work in ordnance factories etc, to which Khwaja Haris replied that yes, of course, the Army Act talks about the category of civilians.

Justice Mazhar observed that the May 9 case did not fall under the category of such provision of the Army Act. Justice Musarat Hilali asked the counsel that when Corps Commanders use their homes as office whether they declare it as their office.

“How much true is this that this idea came later that the Corps Commander’s house was also an office?” Justice Hilali asked to which the counsel replied that he was not going towards any such notification.

Justice Afghan, while addressing Khawaja Haris, questioned as to how the anti-terrorism courts had handed over the accused to the military. “Are there any reasoned orders of these courts,” Justice Afghan asked the counsel for the Ministry of Defence, adding that the counsel should take note of this question and answer it at the end.

During the hearing, PTI’s lawyer Salman Akram Raja told the court they had some objections over some of the portions of judgement of Justice Muneeb Akhtar, adding that he would argue on that as well.

Justice Rizvi inquired how the trial of the accused who attacked the Army Public School was conducted. Khawaja Haris replied that said that the 21th amendment to the Constitution was made in this regard, after which the trial was conducted.

During the hearing, Justice Musrat Hilali, while talking to Hafeezullah Niazi, asked if he is being allowed to meet with his son. He replied in affirmative. Meanwhile, the AAG pleaded the court as the trials of the accused in the military courts had been completed, therefore, the military courts should be allowed to give their verdict in the cases.

The bench rejected the plea and adjourned the hearing for today (Tuesday). Similarly, the court, when took up the suo motu matter of murder of journalist Arshad Sharif, the AAG sought some time for submitting a report regarding Mutual Legal Cooperation with the government of Kenya which the court accepted and adjourned the matter for date-in-office.

Likewise, the same court also heard the suo motu case related to “harassment of journalists. Barrister Salahuddin Ahmed, counsel for Press Association of the Supreme Court (PAS) informed the bench that it had been three years no progress had been made in the case.

Journalist Matiullah Jan informed the court that the harassment was still going on, and false cases were being registered against journalists. Barrister Salahuddin told the court that the Federal Investigation Agency (FIA) sends notices to journalists for inquiry and then picks them up.

Justice observed that if there was no violation of the law, there should be no harassment. During the hearing PAS President Aqeel Afzal brought into the notice of the bench that the police made a raid at the house of court reporter Qamar Mekan.

At this, Justice Mazhar said that they would also look into the matter as well, and directed the AAG to talk to the Islamabad IGP regarding the issue and submit a report on the next hearing. Later, the court adjourned the hearing for indefinite period.