The country’s top judge on Monday said he “expected” that military courts would not hold trial of any of the alleged May 9 rioters until the Supreme Court decided the petitions challenging the trials as he ordered the government to allow suspects under the army’s custody to meet their families.
“Why are the people [in custody of the military authorities] not allowed to meet with their families. Many weeks have passed since the May 9 incident,” said Chief Justice of Pakistan Umar Ata Bandial while addressing Attorney General for Pakistan (AGP) Mansoor Awan.
“We are also receiving information that the suspects are not being provided with proper food and books. Inform us with regard to arranging meetings of the suspects with their family members after taking instructions from the government,” he added.
The CJ was leading a larger seven-member larger bench which, on Monday, resumed hearing of a slew of petitions filed against court martial of the people who allegedly vandalised and set fire to army properties and memorials after the arrest of PTI chief Imran Khan on May 9.
As the proceeding started, AGP Awan took the rostrum to inform the bench that though he had earlier said he had no objection to the inclusion of Justice Mansoor Ali Shah to the bench -- who is a relative of one of the petitioners former CJP Jawwad S Khawaja -- the government had now requested the judge to recuse himself from hearing the case.
The announcement visibly irked the bench members including Justice Shah. “Court benches won’t be formed based on your desire,” the chief justice told the AGP. “What are the grounds for raising an objection to Justice Mansoor Ali Shah? Nobody can doubt the competence of the judge,” he noted.
The CJP observed that the government had also raised an objection to the bench hearing the petitions filed against delay in holding polls in the province of Punjab.
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He said Justice (retd) Jawwad S Khawaja is a saintly man. “What favor could Justice Shah give Khawaja if he heard the matter? Does the government want to make the bench controversial?”
Referring to the government failure to implement the apex court’s April 4 order for holding elections in Punjab and Khyber Pakhtunkhwa on May 14, he said the SC showed restraint and did not take strict action against the rulers. He said it is the moral duty of the government to implement the court order.
He said the court does not have a baton [coercive power] to implement its orders. “Many people have this baton [of authority] but what is their moral authority?”
Commenting on the government’s request, Justice Shah said he is aware of his conduct as an SC judge. “I cannot stay on a bench if someone raises a figure at me. I cannot remain part of this bench anymore,” Justice Shah said as he recused himself from hearing the case.
Latif Khosa, counsel for Aitzaz Ahsan, one of the leading petitioners, expressed regret over this development, declaring it a dark day in Pakistan’s judicial history. Advocate Salman Akram Raja, counsel for another petitioner, also requested the judge to reconsider his decision.
“This is a case about basic rights; there is no justification for objecting to a bench in such cases,” he said. The judges rose after the recusal of Justice Shah.
When a six-member bench resumed hearing of the case after a brief interval, Salman Akram Raja presented his arguments against trial of civilians in military courts, contending that only a judge appointed under Article 175 of the Constitution could hold a trial.
The CJP asked the counsel not to complicate the matter. Justice Ayesha Malik observed that there are a number of courts and tribunal which are not formed under Article 175.
Justice Munib Akhtar noted that if Raja’s contention is accepted, even the military will not be able to court martial even its personnel.
The counsel said there are two types of civilians: civilians who provide services to armed forces and civilians who do not have any such relation with forces.
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“The former are bound to follow military discipline but the latter can only be tried by a judicial judge. Their trial in military courts is unconstitutional,” he said.
During the argument, Justice Bandial rejected a request of Uzair Bhandari—the counsel for Imran Khan, who is also one of the petitioner—to form a judicial commission for an impartial probe into the May 9 incidents, asking him not to talk about “political goals and aspirations”.
He later asked the AGP to allow the May 9 suspects to meet their families as the court adjourned till June 27 [today]. The court later issued a written order which also included a note by Justice Shah.
Justice Shah’s note
Justice Shah noted that although in a constitutional court, it is only for a judge to decide according to his own conscience whether to recuse himself from hearing a case or not, he must in so deciding consider that his decision should not undermine the public trust in the impartiality of the court.
“For the appearance of his partiality would not only demean his reputation but also that of the institution of which he is a part. The insistence on the appearance of impartiality in the dispensation of justice ‘is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication.
“Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.’
“Judicial impartiality upholds public trust, engenders predictability in the law, ensures fair trial, upkeeps the rule of law, and safeguards democracy. The principle of judicial impartiality, therefore, is not merely a moral imperative but a practical necessity to ensure justice, uphold democratic values, protect citizens' rights, and maintain societal order.
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“It may, however, be underlined here that judges should not readily accede to the request for their recusal from hearing a case and decide the matter of their recusal after properly weighing the ground agitated for making such request.
“Where it is apparent that the perception of impartiality is being created for some ulterior motive without any sound basis, the judge must not yield to such strategy and abdicate performance of his duty.
“But if such a request is based on some reasonable ground which may genuinely raise doubt in the mind of a common person about the impartiality of the judge, the safest course for the judge is to accept such request in the larger interest of upholding public trust in the integrity and impartiality of the court.
“In the present case, as the said petitioner is admittedly my relative, a common person may not understand the difference between a petition filed in the public interest and a petition filed for personal interest. I, therefore, in the present case, find it preferable to accept the request and recuse myself from hearing the case.
“Keeping in view the above principles and reasons, in order to safeguard the public trust in the integrity and impartiality of the court, I recuse myself from hearing these petitions on the objection raised by the learned AGP on instructions from the federal government,” he noted.
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