Fate of detained May 9 PTI activists still uncertain

ISLAMABAD:

Despite more than ten months passing since their arrest, the fate of numerous PTI activists held in military custody remains unresolved, with the Supreme Court yet to reach a decision on their case concerning the alleged attack on military installations on May 9.

The court's inability to render a decision has sparked speculation, with fingers pointing to internal strife within the apex court as a primary cause for the delay.

Furthermore, the legal tactics employed by the petitioners seem to have failed to grease the wheels of justice and expedite the resolution of the case.

Initially, objections were raised against Justice Sardar Tariq Masood, prompting his withdrawal from the bench. The setback threw a spanner in the works, stalling progress for months on end. Later, the petitioners' counsel urged the bench to refer the matter to a committee for the constitution of a larger bench.

However, it appeared the bench also desired a similar course of action and seized upon the opportunity presented by the petitioners' request to refer the matter to the committee for the bench's consideration.

"We only needed to convince three judges in the six-member larger bench, and the ultimate result could have been in our favour. However, the majority of the petitioners failed to grasp the situation and requested the expansion of the bench," a counsel representing a petitioner against the trial of civilians in military courts said.

A lawyer asserts that ultimately, it is the responsibility of the bench to expedite the decision in this case.

He suggests that it cannot be ruled out that the bench itself might have intended to delay the matter.

Interestingly, one outcome of the Supreme Court Practice and Procedure Act 2023 is the suspension of a landmark judgment against the trial of civilians by a six-member larger bench.

Serious doubts linger regarding the selection of judges tasked with hearing this case. It remains unclear why a bench composed of the most senior judges was omitted from the larger bench overseeing the government's ICAs.

On April 24, the larger bench once more deferred the issue to the committee for deliberation on the formation of the bench.

Certain bench members expressed their desire to scrutinise the decisions of military courts to ascertain whether due process under Article 10-A is being adhered to.

Justice Syed Mansoor Ali Shah and Justice Munib Akhtar, alongside CJP Isa, form part of the committee. However, Justice Shah is unlikely to weigh in on the bench's constitution, having previously recused himself.

Former additional attorney general Tariq Mahmood Khokhar noted that delay per se is a common ground for judicial review: that the decision maker has acted unlawfully in failing in his duty to decide within a reasonable time.

“In my opinion, the delay in military court cases is unreasonable," he added.

"Who benefits and who suffers from such delay(s)? After May 9, those who believe that they have a right and a duty to retaliate are the beneficiaries; the sufferers include those against whom retaliation is intended.”

“It gets much worse: the Supreme Court has sanctioned, albeit as an ad interim measure, the continuation of the military courts’ proceedings. A disproportionate savagery and terror for those facing military courts,” Khokhar said.

He also said that trying civilians in military courts is incompatible with Pakistan’s obligations under international human rights law; it falls outside our constitutional democratic order.  Such high stakes constitute compelling grounds for expeditious disposal of the military courts' case, he asserted.

‘Travesty’

Advocate Abdul Moiz Jaferii noted that it was a travesty how the military court appeal has been handled. “To be stuck in technicalities at a point where the victims of the process feel that their incarceration is because of the Supreme Court and not at the hands of their captors is a complete failure of process,” he pointed out.

"We are debating about how people would have been liberated after serving their sentences by now.”

He also emphasised that the conversation should have focused on the fact that they were initially held illegally. These twenty individuals, who have been released, are grateful for being penalised for a crime they cannot be tried for and punished by a department they cannot be prosecuted by, as per a Supreme Court judgment.

Jaferii stated that “yet in appeal, we have a judge firstly refusing to recuse, passing an order suspending the judgment and then causing delays when he recuses a month afterwards yet the suspension remains”.

This was a prime example of how, for people who game the system, the process becomes the punishment, he added.

Initially, the trials of civilians in military courts presented a litmus test for the SC. Dragging out the issue is putting a dent in the apex court's reputation, particularly that of the current CJP.

Observers note that as the head of the institution, he should have taken the reins of the bench overseeing the government's ICAs.

Barrister Asad Rahim Khan asserts that the new bench failed to reach any decision, serving only to undermine the original landmark verdict, which he deemed clear and correct.

"The ridiculous practice and procedure law, coupled with Justice Sardar Tariq Masood’s shoddily reasoned suspension of the original order of the court, is what brought us here," he said.

The lawyer hoped the nine-member bench would uphold the law the way the first bench did, as well as affirm the fundamental principle that civilians cannot be tried by military courts. "Bereft of even a constitutional amendment, which was wrong of parliament to do even in 2015, there are few verdicts that have been more clear-cut."

Background

The issue landed in the apex court in June last year. Ex-CJP Umar Ata Bandial assembled a nine-member larger bench under his leadership to address petitions contesting the trials of civilians in military courts.

However, the current CJP, Qazi Faez Isa, and Justice Sardar Tariq Masood declined to participate in the bench on June 22 until a final decision was made on the Supreme Court Practice and Procedure Act 2023.

Subsequently, a seven-member bench under the leadership of former CJP Bandial commenced hearings on the petitions challenging the trials of civilians in military courts.

As the case neared its conclusion, the government raised an objection against Justice Syed Mansoor Ali Shah's participation in the bench due to his relationship with one of the petitioners, former CJP Jawwad S Khawaja. Consequently, Justice Shah recused himself from the bench.

The six-member bench, led by former CJP Bandial, resumed the hearing.

As the proceedings were nearing completion, Justice Bandial adjourned the hearing indefinitely due to the unavailability of some members. Despite requests from the petitioners' counsels, especially Latif Khosa and Aitzaz Ahsan, for a few more hearings to conclude the proceedings, the bench was not inclined to do so.

Following the endorsement of the Supreme Court Practice and Procedure Act 2023, the case was scheduled before a five-judge larger bench under the leadership of Justice Ijazul Ahsan on October 23 last year.

After just one hearing, the bench pronounced that trials of civilians in military courts are unconstitutional. The decision came as a significant surprise not only to the government but also to various segments of society.

Subsequently, the federal government filed intra-court appeals against the decision made on October 23.

A three-member committee, headed by CJP Isa, established a six-member larger bench to adjudicate the government's ICAs.

Several lawyers, including committee member Justice Ijazul Ahsan, raised objections to the composition of the larger bench on various grounds.

Justice Ahsan, who later resigned as an SC judge, penned a letter to the committee outlining his objections to the formation of the six-member larger bench.

In his letter, Justice Ahsan highlighted that it had been agreed upon that since the judgment concerning the trial of civilians by military courts had been delivered by a five-member bench of the court, a seven-member bench would be constituted to hear the appeals.

“I categorically and in clear terms stated that to dispel any impression of pick and choose, all Judges of this Court in the order of seniority be included in the appellate Bench,” he stated.

Justice Ahsan revealed that the CJP had agreed with his viewpoint but proposed that he would consult with the judges. If any judge declined to participate, the next available judge would be included.

Proceeding without the approval of the committee meeting minutes from Justice Ahsan, a six-member larger bench, led by Justice Sardar Tariq Masood, was assembled to hear the government's ICAs.

In December of last year, the larger bench, with a majority vote of 5 to 1, suspended the decision made on October 23 and conditionally permitted the trials of civilians in military courts. The case was adjourned for a couple of months, despite objections raised by the petitioners against Justice Sardar Tariq Masood's involvement.

In late January, Justice Sardar Tariq Masood withdrew from the bench following objections raised by the petitioners.
Nearly two months later, the committee restructured the larger bench under the leadership of Justice Aminuddin Khan to handle the government's ICAs.

The Supreme Court requested information from the federal government regarding individuals who had received short jail terms, were awaiting release, or had been acquitted.

On March 27, the same bench authorized military courts to deliver verdicts in cases resulting in short-term convictions.

Attorney General for Pakistan, Mansoor Awan, informed the bench on April 8 that 20 individuals had been released after receiving one-year sentences.