SC declines to stay army court trials

Top court summons ‘complete record’ of May 9 accused

ISLAMABAD:

The top court on Thursday summoned record of all the alleged May 9 rioters—including women and journalists—in custody of civil or military authorities as it took up petitions filed against court martial of the people who vandalized army assets after the arrest of former premier Imran Khan.

The court also issued notices to all the people and institutions named as respondents in the petitions filed against trial of civilians in military courts under the Pakistan Army Act, 1952 and the Official Secret Act, 1923. However, it rejected the petitioners’ request to stay the trial of the accused in military courts.
“Learned Attorney General for Pakistan (AGP) who is present during the proceedings today has been asked to provide the following information to the court:

“Total number of detenues in the civil and military custody on account of offences allegedly committed by them under any law in the incidents occurred on 9th May, 2023 or thereafter.

“[He should also inform the court as to] how many of such detenues are women and juveniles [and] how many advocates/journalists are in civil and military custody,” said a brief order issued after the hearing.

When a nine-member bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial started hearing petitions filed by former CJP Jawwad S Khawaja, Imran Khan, Pakistan Peoples Party (PPP) leader Aitzaz Ahsan and civil society, one of the bench members Justice Qazi Faez Isa raised a number of issues.

Justice Isa, who has already been notified as the next CJP three months in advance, took exception to the bench. He said parliament had passed the Supreme Court (Practice and Procedure) Act, 2023 which outlines a procedure for formation of benches in cases related to Article 184(3).

He said according to the law, the CJP is supposed to hold a meeting with senior SC judges if he wants to exercise the Supreme Court’s original jurisdiction under Article 184(3).

Article 184(3) is contingent on matters of “public importance” involving any violation of the fundamental rights of the citizens. Under the said article, the court is equipped to take notice of a matter on its own, without the need for a formal complaint or petition to be filed—also called suo motu.

Justice Isa said: "I was surprised when I saw the cause list at 8pm [on Wednesday] that a case was scheduled for hearing today, in which I was included as part of a larger bench of eight judges.”

He said an eight-member bench suspended the Supreme Court (Practice and Procedure) Act, 2023 even before its enactment. The bench, he said, has held some hearings on the petitions filed against the law but has not decided its fate.
“I, therefore, decided not to sit in any court bench and do chamber work until the court decides the status of the law.” He said he is not recusing himself from the bench hearing this case but his standpoint is that the court must first decide about the Supreme Court (Practice and Procedure) Act, 2023.

Justice Sardar Tariq Masood, the third senior most judge in the bench, agreed with Justice Isa. He asked how many judges will hear an appeal if the SC declares the SC act valid.

Justice Isa said that he, while leading a three-judge special bench on March 30, held that all cases under Article 184 (3) be postponed until amendments are made to the Supreme Court Rules that govern the CJP’s discretionary powers to form benches.

He said the Supreme Court registrar, however, issued a circular—on April 1— “disregarding the majority judgment.” Justice Isa said the circular “shows the worth of the SC”.

The senior puisne judge said later a six-member larger bench—on April 4— overturned his ruling about powers of the CJP regarding suo motu notices and formation of benches.

“I was not made part of the bench that set aside the March 30 ruling. I also do not know whether the bench was hearing an appeal against my order or something else,” he said.

The judge said he later wrote a note on April 8, highlighting why the six-judge bench could not set aside his March 30 ruling. “However, that note was taken down from the SC website.”

He also referred to his appointment as head of a commission to probe into over half a dozen videos featuring voices of some serving and former members of the higher judiciary and their family members.

“A five-member bench [of the Supreme Court], however, stopped the commission from performing its tasks. The bench neither issued any notice to the commission nor sought its reply,” he said.

He said four petitions were filed against military courts. [Former CJP] Jawwad S Khawaja was the latest petitioner but “the cause list mentions his petition at serial number 1”.

Justice Isa gave the analogy of an airplane flown by an unlicensed pilot. ‘
“Sitting in the bench while the fate of the Supreme Court (Practice and Procedure) Act, 2023 is undecided is like sitting in a plane being flown by an unlicensed pilot. And hundreds of people perished when a plane crashed,” he said, adding that “our procedure should be completely transparent.”

When Aitzaz Ahsan described the divisions in the Supreme Court as household disputes, Justice Isa took exception to him. “I respect you but this is the Supreme Court of Pakistan, not a household.”

Justice Sardar Tariq Masood also asked Aitzaz’s counsel Latif Khosa why he did not approach the court when civilians were tried in military courts earlier. “Also tell us why you moved the apex court and not the high court first?” he said.

Counsel for civil society Faisal Siddiqi requested the bench to hear the case, stating that lives of many people were at stake. The CJP said the court would look into that matter as the bench rose.

After a break, seven judges excluding Justice Isa and Justice Masood resumed hearing of the case, now in a visibly relaxed environment. The bench, after hearing arguments of Khosa and Siddiqi, summoned record of all the people arrested in connection with the May 9 vandalism.

The bench, however, refused to stay the proceedings of the military courts.
“Stay orders are the answer to every problem. We hope that the trial of civilians has not yet started at military court,” said the CJP. Addressing the AGP, he said: “We will not issue any order without hearing your standpoint.” The court will resume hearing of the case today [Friday].