Military courts: Will CJ Bandial form a full court?

Disagreement among petitioners on the question of forming a full court to hear their pleas against trial of May 9 rioters in military courts on Tuesday compelled a Supreme Court's six-member larger bench to engage in further deliberations.

Unlike some members of civil society, other petitioners want the existing bench to decide the fate of the civilians who are being court martialed under the Pakistan Army Act, 1952 due to their alleged involvement in vandalizing army properties in the wake of former premier Imran Khan’s arrest on May 9.

These petitioners believe that the matter will linger if a full court is formed and that this delay will violate the fundamental rights of 102 individuals who are in military’s custody.

Petitioner Aitzaz Ahsan has urged the bench that these 102 individuals should be remanded in judicial custody if a full court is constituted. Surprisingly, none of the members of the bench on Tuesday gave any remark in favour or against forming a full court.

At the hearing, Chief Justice of Pakistan (CJP) Umar Ata Bandial, who leads the bench, just noted down the contentions of the counsels for the petitioners. In view of the bench's conduct, it is difficult to predict whether it will decide to form a full court today or not.

One section of lawyers said if the bench agrees to refer the matter to a full court then a question may arise as to why CJP Bandial did not form a full court to hear important cases during his term, which is going to end on September 16.

Even the government requested him to form a full court several times but these pleas were declined.

Former chief justice Jawad S Khawaja, who is also a petitioner in this case, has yet to give instruction to his counsel about formation of a full court. Other petitioners, who are mostly supporting Imran Khan, do not want a full court to hear the case at this stage.

They are even expressing apprehension about the conduct of Justice Qazi Faez Isa and Justice Sardar Tariq Masood. The two SC judges were part of the nine-member larger bench that the CJP had formed to hear the matter but they had declined to hear the petitions until the apex court decided the fate of a piece of legislation that seeks to streamline powers of the CJP.

Sardar Latif Khosa, who is representing Aitzaz Ahsan, has said the matter should have been referred to the Supreme Judicial Council (SJC) as the two judges, in his opinion, had committed misconduct by refusing to accept the legality of the bench. However, he said, they would not go to that extent.

Aitzaz Ahsan had endorsed his counsel’s view by saying that Justice Isa had committed misconduct.

Justice Sardar Tariq Masood had also raised questions about a meeting between CJP Bandial and Aitzaz Ahsan and Latif Khosa in the former's chamber before the listing of the case.

During the first hearing, Justice Isa had also snubbed both the lawyers when they were insisting that he should remain a part of the bench. If the bench forms a full court then it is likely that the matter will be decided during the term of the next CJP—that is Justice Qazi Faez Isa.

A lawyer said objectively speaking, the petitioners—who want the existing bench to hear the case—are making a mistake but subjectively speaking, they know Justice Isa and others will not entertain their pleas.

He, however, was amazed at the silence of all judges—except Justice Sayyed Mazahar Ali Akbar—over the manner in which the accused persons were handed over to military authorities.

If the bench continues hearing this matter then CJP Bandial may not give full attention in authoring pending judgments in high profile cases, he added.