Should Justice Masood hear pleas against Oct 23 verdict?

SC panel’s decision triggers debate as judge already gave his opinion on matter

ISLAMABAD:

A debate is under way on the functioning of the three-member Supreme Court committee and its decision in the composition of the benches hearing the federal government's intra-court appeals against the judgment declaring the trials of civilians in military courts as unconstitutional as well as Justice Sayyed Mazahar Ali Akbar Naqvi's petitions challenging the Supreme Judicial Council (SJC) proceedings of misconduct against him.

According to the minutes of the committee’s meeting held on November 30, it was decided that a larger bench would be formed by its chairman, Chief Justice of Pakistan Qazi Faez Isa, and another member, Justice Sardar Tariq Masood, to hear the intra-court appeals against the SC’s October 23 verdict that declared the trial of civilians in military courts as unconstitutional.

The committee formed a six-judge bench, headed by Justice Masood, to hear the intra-court appeals. The bench will also include Justices Aminuddin Khan, Muhammad Ali Mazhar, Hasan Azhar Rizvi, Musarrat Hilali and Irfan Saadat Khan.

"The intra-court appeal and … review petition challenging military court punishments shall be heard first by a bench comprising judges whose judgment is sought to be reviewed, thereafter the intra-court appeal be fixed," read the minutes.

Lawyers are confused about the second paragraph wherein it is written that a review petition will be heard first before the intra-court appeals.

The government has not filed any review petition against the judgment.

A five-judge larger bench, led by Justice Ijazul Ahsan, the third member of the committee, has yet to issue a detailed judgment in the case following its short order on October 23.

However, one of the lawyers, who had succeeded in convincing the previous bench against military justice, wondered how Justice Masood could head the six-member larger bench hearing the government's intra-court appeals.

Read SC larger benches still prone to criticism

"How can Justice Sardar Tariq Masood head this bench? He has already passed an order about the lack of maintainability of these cases," he added.

Justice Masood was part of a nine-member larger bench, which was formed by ex-CJP Umar Ata Bandial, to hear the petitions challenging military courts trying civilians.

On the very first day, Justice Masood refused to sit in that larger bench until the final decision on the Supreme Court (Practice and Procedure Act) 2023 was made. He left the bench along with Justice Isa.

Subsequently, he issued a note to explain his refusal to sit in that larger bench.

Justice Masood -- in paragraph three of his note -- wrote that these four petitions had been filed by those who apparently were not detained or facing a trial in connection with the offences allegedly committed on May 9 this year in which following former PTI chairman Imran Khan’s arrest, enraged people had attacked and destroyed public and private properties, especially those belonging to the armed forces, including the GHQ.

"If a law is challenged, usually it is before the high court under Article 199 of the Constitution. However, these petitions have been filed in this court [the SC] under Article 184(3) of the Constitution [the jurisdiction of which] can only be invoked in the public interest for the enforcement of fundamental rights [as] mentioned in Chapter 1 of Part-II of the Constitution," his note added.

The SC judge further noted that it should not be presumed that those who might be tried raised objections to their trial under the Army Act 1952, or they preferred their case to proceed in an anti-terrorism court or before a criminal court mentioned in the Criminal Procedure Code.

Read more SC to take up appeals against military trial verdict on Dec 13

"In any event, every individual case has to be considered on the basis of the facts of the case and the applicable law and this is to be done after hearing the nominated accused, nothing should be done which may jeopardise the interest of an accused without hearing his side,” he continued.

However, a lawyer pointed out that if anyone raised an objection over Justice Masood hearing the case and he recused himself from it, would he again refer the matter to the committee for the reconstitution of the bench.
Winter holidays for two weeks will start on December 18. The next meeting of the committee will be held in the first week of the next year.

“Any further delay in deciding the intra-court appeals will affect the fundamental rights of 103 accused, who are in custody of military authorities since May,” the lawyer added.

He, however, said it was not very assuring if vocal judges were avoiding being on this larger bench.

CJP Isa, Justice Jamal Khan Mandokhail and Justice Athar Minallah are not part of the larger bench.

Justice Mansoor Ali Shah has already recused himself from hearing this case.

There may be several reasons for this. CJP Isa, in the 21st Constitutional Amendment case, had opposed the trial of civilians in military courts.

Salman Akram Raja, who was the lawyer taking up the petition against military courts trying civilians, said the appeals must be heard by a bench where the majority would be at least six.

That means a bench of at least 11 judges should hear the intra-court appeals.

"Technically a 4-2 judgment will be the majority verdict of a six-member bench and could overturn the 5-0 judgment of a five-member bench. This, however, will be a ridiculous spectacle and harm the dignity of the SC. Some things just do not look good and should not be done," Raja noted.

"A 4-2 judgment by a six-member appellate bench of the SC setting aside a 5-0 judgment will mean that four judges have prevailed over seven.  The SC's authority ultimately comes from the grace and dignity with which it conducts its proceedings," he continued.

Read further SC to share recorded proceedings on website

However, Barrister Salahuddin Ahmed responding to Raja on the social media said a 4-2 verdict could overrule a 5-0 verdict.

“Even if 11 judges in [an] appeal split 6-5, the six will prevail over 5+5=10. Nonetheless, I agree [that a] larger bench [is] needed here," he wrote.

Salahuddin also said no matter what the bench, a decision now allowing the military trial of civilians would quickly occupy a place in the SC pantheon next to Maulvi Tamizuddin, Dosso, Nusrat Bhutto, Zafar Ali Shah etc.

Questions are also being raised as to why senior judges were being ignored in the bench hearing Justice Naqvi's petitions.

A three-judge bench, comprising Justices Aminuddin, Mandokhail, and Hilali, will take up Justice Naqvi’s pleas.
One member of Justice Naqvi's legal team said three senior-most judges should have been part of the bench.

However, a bar member said senior-most judges could not hear the matter because they were members of the SJC.

Justices Muneeb Akhtar and Yahya Afridi could not become members of the bench because they shared it with Justice Naqvi.

One of the petitioners against Justice Naqvi specifically cited those orders.

“The next two senior judges are Justices Aminuddin Khan and Justice Jamal Mandokhail,” he added.

It will be interesting to see whether or not Justice Naqvi’s legal team will accept the composition of this bench.

Except the Guranwala District Bar Association, no bar is supporting Justice Naqvi.  Advocate Anwar Mansoor

Khan is appearing on behalf of the Gujranwala bar.

A lawyer said although Justice Naqvi had responded to 10 allegations, his legal team would try to drag the matter until CJP Isa’s retirement.

The minutes of the committee’s meetings have been shared on the SC’s website. According to the minutes, the maintainability of constitution petitions filed under Article 184(3) will be determined by the three-judge committee.

The SC registrar will scrutinise any public interest matter and forward it to the committee for its consideration. The registrar will also recommend whether or not there is any objection over its maintainability.

It was also decided that civil and criminal cases would be scheduled for hearing on a first-come, first-served basis.

The committee further decided to form benches in all SC registries from December 18 to 29.

From December 18 to 22, there will be one bench each in Islamabad as well as Quetta and Karachi registries to hear the cases there.

In the main federal capital, a bench including Justices Masood, Mansoor Ali Shah, and Minallah will hear the cases.

The bench in the top court’s Quetta registry will comprise Justices Afridi and Mandokhail. Justices Mazhar, Rizvi, and Irfan Saadat Khan will hear the cases at the SC’s Karachi registry. From December 26 to 29, Justice Masood will perform chamber work.

From December 26 to 29, the SC’s Peshawar Registry bench will comprise Justices Aminuddin and Hilali. From

December 26 to 29, the SC’s Karachi registry will have a bench comprising Justices Mandokhail, Mazhar, and Rizvi. The next meeting of the committee will be held on January 4.