6-member SC bench hears pleas against military trials of civilians after Justice Shah’s recusal
A six-member Supreme Court (SC) bench has resumed hearing a set of petitions challenging the military trials of civilians.
The bench comprises Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha Malik.
The fresh larger bench was formed after the government raised objections regarding Justice Mansoor Ali Shah, citing the fact that one of the petitioners, Jawwad S. Khawaja, was related to him.
Justice Shah had subsequently recused himself from hearing the case, although he pointed out that this fact was highlighted at the very first hearing.
This was the second time the bench stood dissolved.
Originally, a nine-bench bench had been formed to hear the case. However, moments after the first hearing began, Justice Qazi Faez Isa had said he did not consider the SC bench “a proper court”, with Justice Sardar Tariq Masood also endorsing his point of view.
The hearing
The PTI chief’s lawyer, Hamid Khan, came to the rostrum at the start of the hearing and said that a number hadn’t been assigned to their plea. However, the CJP said the court would come to this issue later, adding that the judges had come back after recovering from a “setback”.
“Instead of arguments, other tactics are being used here,” Justice Bandial said. He noted that the plea filed by the PTI chief raised several requests but Khan told the court that he would only focus on the one against military trials.
Subsequently, lawyer Salman Akram Raja, representing petitioner Junaid Razzak, came to the rostrum. He referred to the British and American constitutions in his argument.
“Has anyone’s trial in [military court’s] begun,” CJP Bandial asked, to which Raja answered in the negative. The top judge then told the lawyer to not talk based on assumptions.
“In this way, the trial of military officers will also be discussed in the future,” Justice Bandial said. He noted that tomorrow was the court’s last working day and told the lawyer to talk about relevant matters.
He also questioned how Article 175(3), which mandates the complete separation of the judiciary from the executive, was applicable in this case.
Raja said that the article was based on the right to fair trial underlined in Article 9 and 10. “No one can be deprived of the right to fair trial,” he said.
However, CJP Bandial asked the lawyer to show the top court a judicial precedent which stated that Article 175 was linked with the Army Act. He also told the lawyer to not make “grand complications”. “Keep your arguments brief and relevant to the case,” he said.
During the hearing, Justice Ayesha asked when Section 2D of the Army Act, which empowers military courts to try civilians facing charges of terrorism or abetting terrorist activity, was applicable.
“Can a civilian be tried in military courts or not?” asked Justice Ayesha. She noted that the petitioner was challenging provisions of the Army Act but was not giving reasons for doing so.
“The SC has laid down the principle that judicial affairs can only be run by the judiciary,” Raja said. “No one else can exercise judicial powers under Article 175(3),” Raja said.
Raja further said that there were two kinds of civilians. “One is who renders a service for the armed forces,” the lawyer said, adding that such people were bound by “military discipline”.
He said that the second type were those who had nothing to do with the armed forces. He said that “complete civilians” could only be tried by a judge appointed under article 175(3).
“How can we say that military courts are not courts?” Justice Ayesha asked.
“Can the verdicts of military courts not be challenged?” CJP Bandial asked. Raja said that they could be challenged before the army chief or a committee formed by him.
“You can say that the scope of appeal in these courts should be expanded,” the CJP remarked.
Here, Justice Naqvi noted, “You are saying that military courts are a parallel system and can’t be called courts.”
Raja replied in the affirmative, highlighting that civilians were not dispensed basic rights during military trials. “According to the Army Act, trials are conducted in military court on displinary violations. But the trial of a civilian in military courts is not a matter of disciplinary violations,” he contended.
“This is a good point,” Justice Bandial observed.
Meanwhile, Justice Ahsan asked if the petitioner was challenging military trials to the extent of civilians. “You are not challenging trials of army officials, correct?” the judge asked. The lawyer replied that he was not challenging the trials of army officials.
At one point during the hearing, the CJP asked what the US laws said about civilians who rebelled against the state.
“In America, the trials of citizens who indulge in anti-state activities are conducted in civilian courts,” Raja replied.
Separately, Justice Akhtar asked if trials of civilians could be held in military courts if an emergency was imposed in the country and fundamental rights were suspended. Raja replied that the laws in the US were very clear about this.
The CJP noted that such trials were held in civilian courts.
Here, Justice Ayesha asked, “Are military trials of civilians held in our region?”
Raja responded that the practice was not followed in India.
At one point, Justice Bandial said that the decision under the 21st Constitutional Amendment should be seen. “It mentions the application of Army Act on those who take up weapons against the armed forces.”
The hearing was then adjourned for 45 minutes.
Justice Shah recuses himself after govt’s objections
Shortly after the hearing first began at 9:30am, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum and relayed the government’s objections to Justice Shah’s inclusion in the bench as one of the petitioners, ex-CJP Khawaja, was related to him.
“One of the petitioners is Justice Shah’s relative. Therefore, it may affect his conduct,” AGP Awan said.
However, CJP Bandial interjected and said, “The bench will not be made according to your whims.” Expressing his anger, the CJP said that the government “should not mock the judiciary”.
He asked on what basis the government was objecting to Justice Shah’s presence on the bench. “Are you objecting to the conflict of interest or bias?” he asked.
“We have always shown restraint. We didn’t punish those flouting court directives,” Justice Bandial said, adding that implementing the court’s directives was a “moral responsibility”.
He said that ex-CJP Khawaja was not a political person.
“You are a lawyer of great character and reputation. There is a whole series of objections regarding the bench being raised repeatedly,” Justice Bandial said.
Talking about the elections suo motu case, the CJP said that there was a discussion about whether the majority or the minority verdict stood. “You are making the bench controversial again,” he told the AGP.
This prompted Awan to state that personally he had no objections to Justice Shah’s presence on the bench.
For his part, Justice Shah stated that he had highlighted the fact that one of the petitioners was his relative at the very first hearing and asked those with objections come forward.
At the same time, however, the judge also recused himself from hearing the case.
The lawyers present during the hearing urged the judge to reconsider, saying that the case concerned fundamental rights.
“Try and understand, this is [a] judge’s own decision. I cannot hear this case,” Justice Shah told them.
‘Govt not allowing courts to make decisions’
Talking to the media outside the SC after Justice Shah’s recused himself, senior lawyer Latif Khosa — who is representing representing petitioner Aitzaz Ahsan in the case — said, “We cannot bear such allegations against the SC by the federal government.”
He said the government was “not allowing the courts to make decisions” and was disrupting fundamental rights. “They have thrown the Constitution in the trash,” Khosa added.
The lawyer went on to recall the CJP’s remarks from today’s hearing. “The CJP said the same things today. That the same attitude has been going on in which they (the government) are entangling us in [numbers].”
Khosa asserted that the judiciary had a “moral authority” that was accepted by the people and the world. He urged the government to “seriously think” about the matter.
The lawyer said he had informed the court and Justice Shah that the federal government could not raise the objection after it had already said two days ago that it had no issues with the bench.
“They cannot take a U-turn. Two days after the hearing, they have gotten a sudden revelation that an objection should be raised on [Justice] Mansoor Ali Shah sahib,” he remarked.
The pleas
The petitions in question were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan.
Khawaja, who filed the petition through his counsel Advocate Khawaja Ahmad, requested the top court to declare the trial of civilians by military courts unconstitutional.
The former CJP pleaded that Section 2(1)(d)(i) and (ii) of the Pakistan Army Act were inconsistent with the fundamental rights conferred by the Constitution and therefore void, and should be struck down.
As an interim measure, all proceedings against civilians based on the sections should be suspended or, in the alternative, any military court should be restrained from passing a final order in any case against civilians based on the sections, the petition stated.
Before this petition, five members of civil society from different cities, through their counsel Faisal Siddiqi, sought as illegal the trial of civilians in the military courts in connection with the violence in the country of May 9.
Likewise, Ahsan, who has also served as a former law minister and also spearheaded the 2007 lawyers’ movement, explained that the primary purpose of his petition was to ensure that none of the thousands of civilians who have admittedly been arrested for allegedly having partaken in the May 9 violence and being nominated for trial be tried by military courts.
The petitioner said he did not seek to scuttle the trial of any civilian before any lawfully established court of criminal jurisdiction.
In his petition, the PTI chairman sought a declaration against the arrests, investigation, and trial of civilians in peacetime under the Pakistan Army Act (PAA) 1952 as well as the Official Secrets Act 1923.
More to follow