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A new seven-member bench has resumed hearing a set of petitions challenging the trial of civilians in military courts after a nine-member bench was dissolved following objections raised by Justice Qazi Faez Isa and Justice Sardar Tariq Masood.
Earlier today, a nine-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Isa, Justice Masood, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha Malik had taken up the case.
However, Justice Isa had stated that he did not consider “this bench a bench”. He also said that he could not be a part of any bench until the case relating to the Supreme Court (Practice and Procedure) Bill 2023 — which aims to deprive the office of the chief justice of Pakistan (CJP) of powers to take suo motu notice in an individual capacity and which has since become law — was decided.
At the same time, he said that he was not recusing himself from hearing the case. Justice Masood had agreed with Justice Isa’s views.
The hearing was subsequently adjourned after all the judges left the courtroom. However, CJP Bandial decided to move forward with hearing the case and formed a fresh seven-member bench, excluding justices Isa and Masood.
The hearing
Moments after the hearing began, Justice Isa — who was formally named the country’s next chief justice a day earlier — said that every judge had taken an oath to preside over cases according to the law and Constitution.
He highlighted the Supreme Court (Practice and Procedure) Bill 2023, the implementation of which was halted by the top court earlier this year. “Under this law, benches are constituted after holding a meeting,” he said, adding that the bill’s implementation was halted before it became a law.
Justice Isa said that he was “surprised” to see his name included in the bench hearing the case when the cause list was issued last night.
He said that an order he issued as part of a three-member bench was superseded by a “circular”. In April, the apex court’s registrar had issued a circular disregarding Justice Isa’s March 29 order calling for the postponement of suo motu matters.
“A court decision was ignored by a circular issued by the registrar,” he said.
Referring to the March 29 order, he said that there were no laws for determining cases under Article 184(3) and they should be postponed. Justice Isa noted that at this point neither the bill regulating the CJP’s powers nor the law had existed.
“I was surprised and shocked when the SC registrar issued a circular [disregarding the order],” he said. He said that his order on suo motu matters was later withdrawn by a larger bench, questioning whether this was the respect of a SC order.
He stated that his colleagues were more capable than him but he would take a decision in accordance with his conscience.
“That was not a review bench as a review [case] includes the judge that issued the order in the first place.”
Justice Isa said that CJP Bandial then asked him whether he would like to do chamber work. “Looking at the situation, I started doing chamber work,” he said, adding that he also penned a five-page note in this regard which fueled rumours.
Referring to the nine-member bench hearing the case at hand, he said that he did not consider it a bench. At the same time, he said he was not recusing himself from hearing the case.
At this, Justice Masood said that he agreed with Justice Isa.
Aitzaz Ahsan’s lawyer, Latif Khosa, however, pleaded the judges to listen to the matter at hand. “If you don’t listen to the case, what will happen to the country’s 220 million-strong population?” he asked, urging them to keep issues aside similar to familial disputes.
“Th SC is not someone’s house, it is a court,” Justice Isa responded.
Meanwhile, CJP Bandial remarked that two judges had objected on the basis on the Supreme Court (Practice and Procedure) Bill 2023. “Perhaps they do not know that the attorney general has asked for more time in this case,” he said.
He said that the bench had been formed according to the top court’s rules, adding that the top court was present to make decisions in favour of “God’s creations”.
Pleas against military trials
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 Hosain earlier this week, 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.