The Supreme Court on Tuesday rejected the federal government’s request to constitute a full court bench to hear pleas challenging the trial of civilians in military courts, with the larger bench noting that several judges were not available right now.
After a break of three weeks, a six-judge larger bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial and comprising of Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Sayyed Mazahar Ali Akbar Naqvi and Ayesha Malik resumed hearing the case. “Judges are not available at this time. It is not possible to form a full court,” CJP Bandial told Attorney General for Pakistan (AGP) Mansoor Usman Awan on his request for the formation of a full court bench.
At this, the AGP called for constituting a full court consisting of available judges, but Justice Malik questioned who would decide which judges were available. “You are accepting the fact that the chief justice will decide the formation of the bench,” she said. Justice Akhtar then said the current bench had heard the present case to a “large extent,” and urged the AGP to continue with his arguments.
Subsequently, the government’s request for constituting a full court bench was rejected and the hearing adjourned until tomorrow (Wednesday).
Earlier, the AGP had read out a note penned by Justice Afridi wherein he had urged the CJP to constitute a full court. “In his note, Justice Afridi asked for a full court to be constituted. The objections of the other members of the bench were also included in the note,” he said. To this Justice Malik had noted that the government had already objected to the presence of one judge—Justice Mansoor Ali Shah—and questioned how it could request a full court now.
A day earlier, the federal government had submitted a statement to the Supreme Court arguing that the trial of civilians in military courts was an “apt and proportionate response” for perpetrators of the May 9 riots. The government had urged the court to dismiss all petitions, adding that Article 245 of the Constitution had charged armed forces with the obligation to defend Pakistan against external aggression or the threat of war. “Therefore, to create deterrence in respect of such attacks, our constitutional framework allows perpetrators of such vandalism and violence to be tried under [Pakistan Army Act],” it said.
The statement had also called for the case to be heard by a full court bench, citing Justice Afridi seeking the same in his note.
Today’s hearing commenced with Supreme Court Bar Association (SCBA) President Abid Zuberi taking the rostrum and saying he would assist the court on five points. He argued that the apex court had already decided in the Liaqat Hussain case that only military personnel could be tried in military courts. “The judgement stated that a constitutional amendment is needed to try civilians under the Army Act,” he said and questioned how all the suspects could be connected to the crime in question. Citing precedent, he said, the courts had ruled suspects could only be tried if they were directly linked with a crime.
“You are saying that a suspect’s link with the crime is the first requirement of the trial,” said CJP Bandial, adding this suggested civilians could be tried in military courts after they were directly linked to the crime and after constitutional amendment. Justice Ahsan, meanwhile, pointed out that the Liaqat Hussain case was tried without introducing a constitutional amendment and questioned if a constitutional amendment were needed if it concerned the Army’s internal matters.
“In the current situation, a trial is only possible through a constitutional amendment,” Zuberi argued, noting the Official Secrets Act had been invoked against some suspects involved in the May 9 riots but not against others. He said the extent of prosecution by military trials was also unknown and stressed the 21st Amendment allowing for the establishment of military courts had allowed for a judicial review in high courts and the Supreme Court.
“Are you saying that police should first take the accused to regular courts and have them charged before taking them to military courts?” asked Justice Afridi, with Zuberi responding that the law did not regard any person as a criminal until they were charged with a crime.
Justice Ahsan then questioned who decided when the Army Act was applicable and when it was not. Zuberi said police were responsible for investigations and would decide.
After this, AGP Awan commenced his arguments, noting that a full court had decided the petitions against the 21st Amendment and called for doing the same in this case.
The court is hearing a set of petitions filed by former CJP Jawwad S. Khawaja, lawyer Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan. While Khawaja has urged the apex court to declare the trial of civilians by military courts unconstitutional, other petitioners had argued that the Army Act did not apply in the present case. In earlier proceedings, the SC had rejected pleas to stay ongoing proceedings against civilians in military courts.