Fair Trial: Top court in a bind after DG ISPR presser

ISLAMABAD:

Matters have complicated for an apex court bench hearing a slew of petitions filed against court martial of May 9 rioters after a news conference held by the military’s spokesperson and the decision of one of the bench members –- Justice Mansoor Ali Shah -- to recuse himself from the case.

The petitioners, who mostly belong to Lahore, are hoping that the bench led by Chief Justice of Pakistan (CJP) Umar Ata Bandial will give relief to the suspects, mostly PTI workers and supporters, who allegedly vandalised army installation after the arrest of the PTI chief on May 9.

However, the military establishment has expressed the resolve to take stern action not only against the culprits but also their aiders and abettors. The Inter-Services Public Relations (ISPR) director general conveyed a message that stern actions would be taken if the trials are halted.

Some experts believe it will be interesting to see who in the bench responds to the news conference. It is to be seen whether the bench suspends the trial of suspects until its final decision, if it does not conclude its proceeding today [Tuesday].

The petitioners’ attorneys may urge the Supreme Court to take notice of the ISPR news conference on a sub judice matter. However, the present bench may not take coercive steps as the judges on the bench are focusing on giving guidelines to ensure that the civilians involved in attacking military installations get a fair trial.

The judges’ remarks show that they are not satisfied with the process of handing over suspects to the military authorities without passing speaking orders by anti-terrorism court (ATC) judges.

The counsel for one of the petitioners believes that without examining vires of relevant provisions, guidelines will be dangerous as these will make the decisions of the military courts respectable.

The statement of Attorney General for Pakistan (AGP) Mansoor Awan with regard to steps taken by the civilian government to ensure fair trial and due process in the military courts will be crucial. Both things are essential for the validity of the military courts’ decisions at local as well as international forums.

A senior government official, however, believes that the apex court may expand the scope of the superior courts’ review on military courts decisions.

It is an open secret that there has been mistrust between “powerful circles” and one section of the apex court since the latter invoked its suo motu jurisdiction to hold the general elections in two provinces.

Only a united Supreme Court can deal with the prevailing situation but disputes among senior judges is a hurdle to such unity.

CJP Bandial on Monday made it clear that the court has so far shown restraint despite failure of the government to implement its order but now it is time to take a step backwards.

This observation shows that the CJP may issue coercive orders against the government functionaries. But such an order cannot be implemented, if there is severe division with the institution.

A lawyer who is a well-wisher of the CJP said the court should declare these petitions non-maintainable and ask the petitioners to approach the high courts.

“When issue will land in the SC again, he [Justice Bandial] will no longer be the chief justice. I think the CJP should not conclude these proceedings expeditiously,” he added. However, another lawyer said if such an order is passed then the chief justice will lose support from pro PTI lawyers.

For the first time, the CJP on Monday questioned the moral authority of the people with "sticks' However, it is a fact that the SC's moral authority has also been undermined on account of judicial politics since the Panama Papers case.

Another challenge for the SC is that Justice Syed Mansoor Ali Shah has recused himself from the bench on account of his relationship with one of the petitioners, former CJP Jawad S Khawaja.

Now a debate has started as to what decision will be taken by the CJP in a case related to formation of an inquiry commission to probe some audio leaks. The SC has reserved its decision on a government's plea seeking recusal of the CJP from the bench on similar basis.

Some PTI lawyers said Justice Shah should have not recused himself. They describe this development as part of judicial politics. Former additional attorney general Tariq Mahmood Khokhar said that the CJP’s woes are more complex and nuanced.

Khakhar, who has been closely following judicial politics for the past several decades, said a nine-member bench could not “placate the implacable”.

“No one takes notice of the CJP nor his prayers nor his tears. The SC is ignored with impunity. Quoting English poet TS Eliot he said, “For us, there is only the trying. The rest is not our business.”

“Frankenstein’s monster is affecting the ruination of its originator. Wittingly or not, today’s recusal fits neatly into the previous recusals," he added.

"The CJP and his SC were instrumental in undermining parliamentary democracy, parliamentary opposition and reversing the course of general elections.

“A ragtag government was forced upon the nation which is now affecting the personal humiliation of the CJP and questioning the relevance as well as the legitimacy of his SC," he said

Some analysts believe the government may show a new card today in order to frustrate or delay the bench's proceedings.