The Supreme Court bench (SC) hearing a set of pleas challenging the military trials of civilians stood dissolved for a second time on Monday as Justice Mansoor Ali Shah recused himself from hearing the case after the government raised objections. Originally, a nine-bench bench had been formed to hear the case. However, moments after the first hearing began, Justice Qazi Faez Isa had said he did not consider the SC bench “a proper court”, with Justice Sardar Tariq Masood also endorsing his point of view. Subsequently, a seven-member bench, comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Shah, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayyed Ma­­zahar Ali Akbar Naqvi and Justice Ayesha Malik was formed to hear the case.

 The petitions challenging military trials of civilians were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan. At the outset of today’s hearing, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum and relayed the government’s objections to Justice Shah’s inclusion in the bench as one of the petitioners, ex-CJP Khawaja, was related to him. “One of the petitioners is Justice Shah’s relative. Therefore, it may affect his conduct,” AGP Awan said.However, CJP Bandial interjected and said, “The bench will not be made according to your whims.” Expressing his anger, the CJP said that the government “should not mock the judiciary”.

 He asked on what basis the government was objecting to Justice Shah’s presence on the bench. “Are you objecting to the conflict of interest or bias?” he asked. “We have always shown restraint. We didn’t punish those flouting court directives,” Justice Bandial said, adding that implementing the court’s directives was a “moral responsibility”. He said that ex-CJP Khawaja was not a political person. “You are a lawyer of great character and reputation. There is a whole series of objections regarding the bench being raised repeatedly,” Justice Bandial said. Talking about the elections suo motu case, the CJP said that there was a discussion about whether the majority or the minority verdict stood. “You are making the bench controversial again,” he told the AGP.

This prompted Awan to state that personally he had no objections to Justice Shah’s presence on the bench. For his part, Justice Shah stated that he had highlighted the fact that one of the petitioners was his relative at the very first hearing and asked those with objections come forward. At the same time, however, the judge also recused himself from hearing the case. The lawyers present during the hearing urged the judge to reconsider, saying that the case concerned fundamental rights. “Try and understand, this is [a] judge’s own decision. I cannot hear this case,” Justice Shah told them. The petitions in question were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan.

 Khawaja, who filed the petition through his counsel Advocate Khawaja Ahmad, requested the top court to declare the trial of civilians by military courts unconstitutional. The former CJP pleaded that Section 2(1)(d)(i) and (ii) of the Pakistan Army Act were inconsistent with the fundamental rights conferred by the Constitution and therefore void, and should be struck down. As an interim measure, all proceedings against civilians based on the sections should be suspended or, in the alternative, any military court should be restrained from passing a final order in any case against civilians based on the sections, the petition stated.

 Before this petition, five members of civil society from different cities, thro­ugh their counsel Faisal Siddiqi, sought as illegal the trial of civilians in the military courts in connection with the violence in the country of May 9. Likewise, Ahsan, who has also served as a former law minister and also spearheaded the 2007 lawyers’ movement, explained that the primary purpose of his petition was to ensure that none of the thousands of civilians who have admittedly been arrested for allegedly having partaken in the May 9 violence and being nominated for trial be tried by military courts.

The petitioner said he did not seek to scuttle the trial of any civilian before any lawfully established court of criminal jurisdiction. In his petition, the PTI chairman sought a declaration against the arrests, investigation, and trial of civilians in peacetime under the Pakistan Army Act (PAA) 1952 as well as the Official Secrets Act 1923.

Credit : Independent News Pakistan-INP