Farooq Naeem—AFP
Chief Justice of Pakistan (CJP) Umar Ata Bandial on Thursday said a reformed seven-member bench will strive to “quickly” wrap up pleas against the trial of civilians in military courts, as he refused a request from the petitioners to issue a stay order against pending proceedings.
“It is not right to issue stay orders on everything,” he said while heading the bench comprising Justices Ijazul Ahsan, Mansoor Ali Shah, Muneeb Akhtar, Yahya Afridi, Ayesha Malik, and Mazahir Ali Naqvi. The bench had initially included Justices Qazi Faez Isa and Sardar Tariq Masood, but they refused to attend proceedings by noting it was “illegal” until the matter of the Supreme Court Practice and Procedure Act, 2023 had been resolved. Stressing that he was not recusing himself, Justice Isa said he could not violate his oath by participating in proceedings that went against the law. He further explained that he had avoided being part of any benches, and remained restricted to chamber work until a verdict had been rendered on the legislation that seeks to curtail the CJP’s unfettered powers of bench formation.
The senior puisne judge remarked that in his view, a law could be rejected, not suspended.
Justice Masood, meanwhile, questioned the petitioners why they had not cared about the fundamental rights of citizens of Pakistan earlier; at least 25 civilians were tried in military courts during the Pakistan Tehreek-e-Insaf (PTI)’s tenure with no concern expressed by any of the petitioners.
Responding to Justice Isa’s concerns, CJP Bandial maintained he had constituted the bench in line with the law.
The bench has taken up petitions separately filed by PTI Chairman Imran Khan, former chief justice Jawwad S. Khawaja, lawyer Aitzaz Ahsan, and Pakistan Institute of Labor Education and Research (PILER) Executive Director Karamat Ali against the trial of civilians in military courts. All the petitions have referred to the government’s decision to try in military courts civilians who had attacked Army installations during the May 9 riots triggered by the arrest of Khan in a corruption case.
After the a brief recess following the exits of Justices Isa and Masood, a seven-member bench resumed hearing the case, with Justice Shah noting he was related to petitioner Khawaja and was willing to recuse himself if there were any objections to his inclusion in the bench. As there were no objections, the hearing resumed, with the CJP directing all parties to keep their arguments concise, as the court was hearing the present case during summer vacations and was not at full strength.
Commencing his arguments, Sardar Latif Khosa—representing petitioner Ahsan—said Article 245 was imposed in the country. At this, Justice Shah remarked the federal government had already revoked it. The CJP then questioned if any civilians were being tried in military courts. “Yes, military trials of civilians are underway,” responded the lawyer, referring to a press release issued after a meeting of the National Security Committee highlighting “irrefutable” evidence of the May 9 riots.
The judges then directed the lawyer to present facts rather than statement, asking him to explain what the law says with respect to trials of civilians in military courts. Khosa explained he had requested anti-terror courts to shift civilians’ cases from military courts, with Justice Naqvi saying the ATCs had jurisdiction to hear cases filed against May 9 rioters.
Khosa agreed with Justice Naqvi and said his client believes all these cases should be heard by ATCs.
Justice Afridi then inquired if anyone had challenged the law under which military trials would be conducted. Justice Malik similarly asked the lawyers to inform the court about the rules of the Army Act and military courts. “Tell us about the law or something solid on the basis of which the punishments are being awarded,” Justice Afridi remarked, while Justices Malik and Shah asked the basis for which civilian cases in anti-terrorism courts had been transferred to military courts.
Khosa told the court the Army Act does not mention civilians. Justice Shah then remarked that in his view civilian laws had stricter punishments than military ones. The CJP then sought details of the people arrested during the May 9 violence and adjourned proceedings until tomorrow (Friday), saying the case would resume at 9:30 a.m.