SC judges argue against bar associations joining military courts case

ISLAMABAD: Two of the seven judges hearing the military courts case have opposed the July 8 order of the bench, impleading the Lahore High Court Bar Association (LHCBA) and the Lahore Bar Association (LBA) in the case, with one saying the matter at hand was purely a question of law.

Headed by Justice Aminuddin Khan, a seven-judge bench had allowed the applications of the LHCBA and LBA by holding that there was no harm in accepting these applications, as senior counsels will assist the apex court in reaching a right conclusion while hearing the intra-court appeals (ICA) against the Oct 23, 2023 order.

The Oct 23 order by a five-member bench nullified the trial of civilians by the military courts involved in the May 9 violence.

But in separate notes, Justice Shahid Waheed and Justice Shahid Bilal Hassan opposed the majority order.

In his note, Justice Shahid Waheed observed that the applicants had moved their applications under Order V Rule 2(2) read with Order 33 Rule 6 of the Supreme Court Rules 1980 for impleadment of the applicants as respondents in the ICAs preferred under Section 5(1) of the Supreme Court (Practice and Procedure) Act 2023 against the Oct 23 judgement.

Justice Waheed explained that the grievance voiced in the ICA was that the lawfulness of Section 2(1)(d) and Section 59(4) of the Pakistan Army Act (PAA) 1952 had not been correctly determined by the original bench.

Section 2(1)(d)(i) of PAA says that those persons not otherwise subject to PAA become subject to it if they were accused of seducing or attempting to seduce any army officer from his duty or allegiance to the government.

Likewise, Section 2(1)(d)(ii) says the individuals could be tried under PAA if they have committed offence in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan an offence under the Official Secrets Act 1923.

Section 59(4) says that any person who becomes subject to PAA will be liable to be tried under this act.

The issue at hand, Justice Waheed observed, was a pure question of law and since PAA was a federal legislation, the question of its validity could be decided effectually and completely in the presence of the federation of Pakistan.

It needs to be examined whether the applicants, under the circumstances, can be allowed to join appeal proceedings to rendering assistance in the public interest, to determine the question of law raised before the court.

Meanwhile, Justice Shahid Bilal Hassan observed that the applicants were not aggrieved with the Oct 23 judgement, which was evident from the fact that they have shown their desire to be impleaded as respondents in the ICAs.

Published in Dawn, July 11th, 2024