Civil society weighs in on May 9 trials

ISLAMABAD:

As the Supreme Court is set to resume hearing petitions against the trial of civilians in military courts under the Army Act on Tuesday (today), the top court will be facing an additional request to constitute a full court bench to adjudicate on the matter.

The request from members of the civil society came as a six-judge bench, headed by Chief Justice Umar Ata Bandial, is set to resume hearing challenges to the trial of civilians by military courts.

In their application, the activists sought referral of all related petitions to the CJP for the constitution of a full court comprising all available judges for the adjudication on the fundamental and complex constitutional and legal questions raised in their petition along with those raised in other connected petitions.

Giving reasons for the constitution of the full court, the petition said it was one of the most important cases in Pakistan’s judicial history as it was a matter of grave public importance and would determine the future of fundamental rights in this country.

In the meanwhile, Attorney General for Pakistan Mansoor Awan will apprise the six-member larger bench about the proposed legislation for giving the right of appeal to the accused against military court decisions. So far, no legislation has been carried out.

The civil society members in their application also stated that they acknowledged and appreciated the judicial courage and sense of constitutional duty shown by all six members of this present bench – including that of Justice Mansoor Ali Shah whose inclusion was "illegally" and “malafidely” objected by the government – to hear the case on an urgent basis while sacrificing their sanctioned judicial holidays.

It also appreciated the bench for various orders it passed during the course of proceedings, “which have acted as a barrier against the grave injustices being caused to the accused persons facing illegal court martials/military courts for the events of 9th and 10th May 2023”.

"Such judicial courage as well as the sense of constitutional duty has indeed already been recorded as extraordinary in the annals of judicial history. Therefore, it is most respectfully and most humbly submitted that anything contained in this present application should not be read or viewed as distracting or minimising the petitioner's aforementioned acknowledgement and appreciation of this present honourable bench,” the petition read.

It further stated that one of the primary reasons for the request for the constitution of a full court was that “it is shocking that various statements have been made by politicians and sitting ministers of the present government questioning the legitimacy of this present bench and especially considering the past consistent contemptuous record of this present government which has consciously and deliberately violated various judgments and orders of this honourable court arising out of the holding of the elections of the Punjab Assembly, which have shockingly still not been implemented”.

It appeared, the petition continued, that the government and state officials will also subvert the implementation of any judgment in this present petition on the same contemptuous arguments questioning the constitution of this bench.

Therefore, only a judgment of the full court can counter any future contemptuous attempt to sabotage any judgment passed in this present petition as well as the connected petitions.

The application said that two lessons can be drawn from past judicial history and judicial practice. Firstly, no judgment of a Full Court has ever been subverted or not implemented by the Pakistani state including military dictators. Secondly, in the past matters of major constitutional importance and complexity, including cases involving the constitutionality of military trials, have been heard by larger benches of nine judges and above or by full courts.

The third reason, the petition said, was that even two members hearing the matter have suggested to the CJP to constitute a full court.

Anticipating that a number of objections may be raised for the constitution of a full bench in this present controversy at this stage, it said as a response to this objection it could be argued that this was a part-heard matter and has substantially proceeded.

Further, the matter was of such grave public importance and might have such grave constitutional implications that such a technical objection may kindly be disregarded.

Secondly, any constitution of a full court will delay these matters as some of the Honourable Judges are not available either in Islamabad or in the country. “As a response to this objection, it is humbly submitted that the learned attorney general has already made a categorical statement that no accused person is being charged with either a sentence of death or a lengthy sentence.”

Therefore, any short delay will not have irreversible consequences on this present controversy. Thirdly, the government’s request for a full court has been rejected. As a response to this objection, it is humbly submitted that this honourable bench has yet to pass a formal order in this regard rejecting such a request and even otherwise, the petitioners categorically distance themselves from the government’s request for a full court as it has been made obviously for malafide reasons.

Fourthly, the vested rights of accused persons may be affected by any delay in these proceedings. As a response to this objection, it is humbly submitted that the learned attorney general has already made a categorical that no military trial of any detained civilian has commenced and the same shall not be started without prior permission of this court"

"Submitted that it is settled law that a full court of the Supreme Court would still be a full court even if some of the honourable judges are not willing or cannot be a part of such a full court. It is furthermost respectfully and most humbly submitted that the petitioners have no objection if all the honourable judges of the Supreme Court are part of this proposed full court and it is categorically stated that, unlike the government's malafide objections, the petitioners have no objection, whatsoever, on any honourable judge willing and available to hear this present and connected petitions," the application read.

It is expected that the bench will consider this request today.