Trying civilians

As the Supreme Court is seized with a case of fundamental importance, cracks within the institution are quite visible. This has once again exposed the fault-lines of argument among the Brother Judges, as the issue pertaining to suo motu powers of the chief justice remains a riddle. The petition challenging the trial of civilians by military courts saw a serious discord as puisne judge and would-be chief justice, Justice Faez Isa, disagreed with the formation of nine-member bench on the premise of new suo motu legislation, and his contention was backed by Justice Tariq Masood. Though they refused to recuse themselves, the bench incidentally was diminished to seven. This has once again thrown open the proceedings, and any outcome of the case, in the annals of jurisprudential difference of opinion, which is not a healthy sign, per se.

The apex court, nonetheless, took a great stride in public litigation as it sought record of all those arrested in the country after May 9. The prayer before the larger bench is to declare the trial of civilians by military courts unconstitutional, and to issue an interim order suspending such proceedings, and to restrain military court(s) from passing a final order in any case against the civilians. The clubbed-up petition pleads that sections of the Pakistan Army Act are inconsistent with the fundamental rights conferred by the Constitution and, therefore void, and should be struck down. While the argument on behalf of petitioners and civil society elements is that in the presence of functioning anti-terrorism courts, there is no need for a parallel format of military courts, the bench will have to take a holistic look at law, precedents and spirit of the Constitution. It will surely be a landmark hearing with a serious impact not only on civil strata, but also on the apparatus of decision-making under the 1973 Constitution.

Reason and lawful dictum should prevail over assumptions. Also the superior judiciary should reconnect itself in harmony, and be seen on the same page in upholding the need for judicial review.

Published in The Express Tribune, June 23^rd, 2023.

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