ISLAMABAD , June 22, 2023: The Supreme Court of Pakistan on Thursday heared petitions against trial of civilians in military courts and deferred the hearing till Friday (tomorrow).
A seven-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial, conducted hearing of the petitions challenging trial of civilians in military courts.
As the hearing resumed at 1:30pm, Latif Khosa advanced his argument on behalf of petitioner Barrister Aitzaz Ahsan. Latif Khosa said the formation commanders during their meeting had decided to try the perpetrators of May 9 attacks in military courts. A declaration to the effect was also issued which was posted on ISPR website too.
He maintained that the declaration was against Article 10-A of the Constitution of Pakistan. Mr Khosa also read out the declaration in court. Mr Khosa said as per formation commanders they had irrefutable evidence against May 9 perpetrators.
The ATCs were requested to transfer cases of civilians to army courts. Mr Khosa added that he was not against punishing the May 9 culprits but he did not want the civilians to be tried in military courts. He continued that a colonel or a brigadier had to hear cases in military courts against civilians and it was likely that he would not go against the decisions made in the corps commanders or formation commanders’ meetings.
When asked whether the army act was challenged by any bench, Mr Khosa said he did not know in which court the Act could be challenged.
The Supreme Court sought the record of all those arrested in the country post-May 9, when violent protests broke out in the country following the arrest of the PTI chairman.
The SC bench also refused to grant a stay order on the decision to conduct trials of civilians in the military courts. CJP Bandial said that the apex court would first hear arguments from the attorney general on this matter.
Bench reconstituted after two judges recuse
Chief Justice of Pakistan Justice Umar Ata Bandial had reconstituted a seven-member bench hearing appeals against trial of civilians in military courts after senior judges Justice Qazi Faez Isa and Justice Tariq Masood recused themselves from hearing the case.
The new seven-member bench, headed by Bandial, comprises Justice Yahya Afridi, Justice Mansoor Ali Shah, Justice Ayesha Malik, Justice Mazahar Ali Naqvi, Justice Ijazul Ahsan and Justice Muneeb Akhtar.
Earlier, when the Supreme Court started hearing of petitions filed by Aitzan Ahsan, the bench was dissolved as senior justices including Qazi Faez Isa refused to hear the pleas taking stance that the Practice and Procedure Bill case should be decided first. Justice Sardar Tariq Masood also recused himself from hearing the case, saying he agreed with the viewpoint of Justice Isa.
Justice Faez Isa’s observations
Justice Qazi Faez Isa, at the outset of the hearing, said he wanted to give some observations when senior lawyer Latif Khosa requested to start hearing of the case and said he was pleased over hearing of the case. Justice Isa asked Khosa to express his pleasure outside court as it was not a political forum.
Justice Isa then remarked that his order was set aside through a circular passed by the registrar. Justice Isa further remarked that he was not detaching himself from the bench but he did not consider the larger bench hearing pleas against military courts a proper one. He was also of the view that all benches hearing cases had no legal backing without a final ruling on the Practice and Procedure Bill.
As petitioner Aitzaz Ahsan and senior lawyer Latif Khosa insisted upon hearing the case, Chief Justice Bandial remarked that two senior judges had objected to the bench, so there was no room for further arguments. He said the court could vacate stay on the Practice and Procedure Bill.
Pleas against military courts
Earlier, prominent lawyer Aitzaz Ahsan, retired Justice Jawad S. Khawaja and others had approached the apex court through their lawyers.
Ahsan’s plea requested court to render civilians’ trial in military courts “unconstitutional”, annul sections 2 and 59 of the Army Act, and declare section 94 and rules “unconstitutional”. Moreover, the petitioners also pleaded court to annul ATC’s decisions of handing over civilians to army courts, and order release of civilians detained under army laws.
“The petitioner has no personal interest in this case and the relief sought is for the benefit of all citizens regardless of political affiliation,” Justice (retd) Khawaja said in his petition, submitted through his counsel Khawaja Ahmad Hosain.