Top court faces its defining moment

ISLAMABAD:

In a significant development, Chief Justice of Pakistan (CJP) Umar Ata Bandial on Wednesday formed a nine-member larger bench to hear petitions filed by former CJP Jawad S Khawaja and others against the trial of alleged May 9 rioters in military courts.

Led by the CJP himself, the larger bench includes two senior most SC judges—Justice Qazi Faez Isa and Justice Sardar Tariq Masood. Interestingly, CJP Bandial has included these two judges for the first time in any bench hearing a politically sensitive matter.

According to the supplementary cause list issued by the SC’s assistant registrar on Wednesday, the bench also includes Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A Maik.

The bench will take up today [Thursday] the petitions filed by former CJP Khawaja, senior lawyer Aitzaz Ahsan, Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan and civil society against court martial of the people who allegedly vandalized state and army properties in the wake of May 9 arrest of Imran Khan.

The inclusion of Justice Isa—who was notified as the next CJP three months in advance on Wednesday—has triggered a debate in legal circles. Since enactment of the Supreme Court (Practice and Procedure) Act, 2023—which seeks to streamline powers of the CJP— Justice Isa has not sat in any court bench.

The present case is a big test for Justice Isa due to several reasons.

As part of a bench hearing petitions against formation of military courts in the wake of the December 2014 attack on schoolchildren, Justice Isa was among the minority judges—including former Justice Jawwad S Khawaja— who had declared the trial of civilians in military courts as unconstitutional.

Some legal experts said if the larger bench is constituted in consultation with the senior puisne judge—Justice Isa— then it is CJP Bandial's victory. Otherwise composition of this bench will be considered a part of the judicial politics and in that case anything may be expected from some bench members.

Former additional attorney general Tariq Mahmood Khokhar said if the nine-member bench is constituted through mutual consultation and consensus then it is a triumph for the CJP and the SC. “But if it is a unilateral decision of the CJP then expect the unexpected.”

Seven senior most judges are part of the bench.

However, inclusion of Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha Malik in the larger bench is not according to seniority, leading one to believe that there may be other considerations at work.

Abdul Moiz Jaferii advocate said formation of this bench is a last ditch attempt by the outgoing CJP to make a legacy “that is about anything other than his disastrous courtship of [former prime minister and Pakistan Tehreek-e-Insaf chief] Imran Khan.”

"It is a bench that might unravel immediately upon the start of the proceedings because of the presence of one SC judge as several judges have expressed their desire to have nothing to do with him," he added.

Recently CJP Bandial had remarked that inclusion of Justice Naqvi in a bench was a silent message to those who had filed reference against him for alleged violation of the code of conduct.

A lawyer asked whether the CJP had tried to evolve consensus before forming the bench.

Some senior lawyers believe that the court may ask the petitioners challenging the military courts to first approach high courts. Maintainability of the petition will be a big issue for the bench.

However superior bars are unanimously opposing the trial of civilians under the army act. If the court rejects the petitions on technical ground then the bench may face a backlash from right activists.

Mirza Moiz Baig advocate said while lawyers, bar associations, and judges themselves have urged the CJP to constitute benches that are more inclusive, such exhortations have borne little fruit.

"Nonetheless, Justice Bandial’s decision to include Justice Isa, Justice Shah and other judges whose views differ substantially from his own in the bench is most interesting.

In his 2015 judgment, Justice Isa had observed that military courts offend the rights of the citizen as enshrined in the Constitution. Justice Bandial, however, had held that such courts were not inconsistent with the Constitution’s basic structure.

Baig said Justice Bandial’s decision to include Justice Isa in the bench, thus, puts the latter on the spot.

“It is to be seen whether Justice Isa will maintain his stance on military courts or recuse himself given the fact that he has already expressed his views on military courts and that the SC had earlier restrained him from hearing cases involving Imran Khan who is one of the petitioners.

“Questions also emerge if Justice Isa’s inclusion in the bench is aimed at reducing the division in the judiciary or is it designed to put Justice Isa on the spot," he added.

Hafiz Ahsaan Ahmad Khokhar said Section 2 (d) and Section 59 of the Pakistan Army Act, 1952 were amended through Defence Services Ordinance No 3 and No 4 of 1967. These amendments introduced the provisions to try civilians in military court.

“The Supreme Court through its judgment PLD 1975 SC 506, PLD 3015 SC 506 and 2017 SCMR 1249 has consistently held that these amendments are valid pieces of legislation; are not contrary to the provisions of the Constitution and would not create a new offence,” he said.

According to Khokhar, these judgments of the Supreme Court further held that as these are valid pieces of legislation, civilians can be tried under the Pakistan Army Act, 1952 if they are found involved in violation of civil offences as per Section 2(d) and Section 59 of the act.

He said the matter of interpretation of the Constitution and amendments to the army act had been heard by different benches comprising 3 to 17 judges.

“As it is once again the question of interpretation of the Constitution and striking down the provisions of Section 2(d), Section 59 and Section 94 of the army act, it will be more appropriate if a full court of all available judges is constituted to hear these petitions.”

He said the present petitions have been filed on violation of fundamental rights, but the Article 8 also provided the exception that the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953 and the Pakistan Navy Ordinance, 1961 could not be challenged being part of fourth schedule of Part 1 of the Constitution as an exception provided in the Constitution.

“Thus maintainability of these petitions under Article 184 (3) of the Constitution would be a bigger question particularly when the Supreme Court has already validated these impugned provisions of the Pakistan Army Act, 1952 through its various judgments.

He said earlier eleven SC judges issued an order in favour of the constitutional amendment to the army act. “So it would be appropriate if the larger bench hearing the petitions had more than eleven judges.”

“Without suspending the impugned provisions of the act and without going to the legislative competence of the parliament and the earlier SC judgments validating these provisions, it would be very difficult for the bench to pass an interim order for suspending the process initiated under the army act.”

Background

Alleged supporters and workers of the PTI party on May 9 vandalized and set fire to state and army properties and memorials after authorities arrested PTI chief Imran Khan from the premises of a court in the federal capital.

A week after the incident, the country’s military leadership called for holding trials of the rioters in military courts under the Pakistan Army Act, 1952 and the Official Secret Act, 1923. The country’s civilian government endorsed the decision on May 16.

Later dozens of alleged rioters were handed over to military authorities for their court martial. Meanwhile a number of petitioners including the PTI chief Imran Khan, Pakistan Peoples Party (PPP) leader Aitzaz Ahsan and some members of civil society challenged the move.