Aamir Qureshi—AFP
The Supreme Court, with a 5-1 majority, on Wednesday suspended a ruling declaring the trials of civilians in military courts null and void, pending a final ruling on appeals against the judgment.
The suspension, announced as the court took up a set of intra-court appeals challenging its previous order, was supported by five judges, with Justice Musarrat Hilali dissenting. In October, after several months of hearings, a five-member SC bench had declared that conducting the trials of 103 civilians in military courts for their alleged role in the May 9 riots was ultra vires of the Constitution. The short order had additionally declared the accused should be tried in relevant criminal courts.
Following the ruling, the caretaker federal government, as well as the provincial governments in Balochistan, Khyber-Pakhtunkhwa and Punjab had filed appeals against it. The appeals had claimed the apex court had exceeded its jurisdiction by nullifying military trials, adding this undermined the ability of armed forces to perform their duties, as civilians who violated the Official Secrets Act would also fall out of its ambit. Separately, the defense ministry had also moved an appeal, seeking the suspension of the verdict until appeals against it were decided.
Prior to the hearing, one of the petitioners against the military trials of civilians, former chief justice of Pakistan (CJP) Jawwad S. Khawaja, had objected to the inclusion of Justice Sardar Tariq Masood in the bench, maintaining he had already recused himself from the nine-member bench formed to hear pleas against military trials.
As proceedings commenced, Justice Masood refused to recuse himself, directing the counsels to read a verdict penned by Khawaja in which he had said it was entirely up to a judge whether they remained a part of the bench or recused themselves. Latif Khosa, representing petitioner Aitzaz Ahsan, then objected to the formation of the bench, claiming it violated the Supreme Court (Practice and Procedure) Act. To this, Justice Masood said this objection would be taken up after respondents were notified.
Faisal Siddiqui, the counsel in pleas filed by civil society members, argued that the government cannot avail the services of a private lawyer, with Attorney General for Pakistan (AGP) Mansoor Usman Awan maintaining all legal requirements were fulfilled. He then urged the court to first hear the petitioners who had filed the intra-court appeals before taking up the objections.
Another of the petitioners’ lawyers, Salman Akram Raja, then argued the apex court could not “suspend the verdict nullifying the trials without listening” to counsels in the original pleas. Khosa then reiterated his call for Justice Masood’s recusal, saying he had already voiced his voiced his opinion on the case in a previous note. At this, the judge once more refused to recuse himself.
The AGP then questioned how objections to the appeals could be entertained when notices had not yet been issued. “The one who objected is himself not present in the court,” he added and urged the court to begin hearing arguments on the appeals first, which the court accepted. Petitioner Ahsan then came to the rostrum and against sought a decision on the objections, with Justice Masood reiterating he would not recuse himself.
The proceedings were then taken up by Shumail Butt, the counsel for Balochistan’s Shuhada Forum, which has filed an appeal against the nullification of military trials. Justice Muhammad Ali Mazhar told the lawyer he would have to revise his appeal after a detailed order was issued.
Defense Ministry counsel Khawaja Haris then took the rostrum, arguing the nullification verdict had not specified which articles of the Constitution the designated provisions of the Army Act were in violation of. Citing the case of Brig. (retd.) F.B. Ali, he said the same sections were upheld, and validated by a full court when hearing a case on the 21st Amendment. In this regard, the counsel argued, the Supreme Court had previously held that if a crime pertained to the military, its trial could be held in military court.
Justice Mazhar then questioned how a “fair trial” could be ensured in military courts. Haris noted that the wording of the apex court ruling included people such as convicted Indian spy Kulbushan Yadav, arguing the Army Act’s jurisdiction over civilians was “already limited.” As such, he argued, provisions pertaining to civilians “could not be declared void.”
Justice Masood then questioned whether the court should decide the matter without first reviewing a detailed order, which is still pending. Justice Irfan Saadat Khan questioned why the matter could not remain pending until the detailed verdict. To this, the lawyer said he was requesting the court to allow military trials to resume, pending the appeals.
Khosa then objected to any stay order on the court’s Oct. 23 verdict, saying judges who made that decision were also Supreme Court judges. Justice Masood dismissed the objection, questioning why the appellate court existed if it could not act on past judgments.
In the order issued after the hearing, the bench said trials of 103 civilians currently in military custody in connection with the May 9 riots would continue. However, it added, a final verdict could not be issued against the suspects until the appeals against the Oct. 23 ruling were decided.