A six-member bench of the Supreme Court started hearing the petitions against the trial of civilians in military courts after a larger bench was dismissed earlier in the day.
The bench, headed by the chief justice of Pakistan, now comprises Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik.
The CJP told the lawyer of the PTI chairman, Hamid Khan, that instead of arguments, tactics are being employed here.
“You have also made various pleas in the application,” he added.
Another petitioner’s counsel Salman Akram Raja said his client’s case was also before the military courts, adding the trial was fixed under Article 175 only, which a judge can do.
When the FPLE case was decided, the principle of separation of powers was not clear. To this, Justice Malik asked how that case was related.
“The FPLE case was related to retired army officers,” she remarked.
Justice Akhtar asked the lawyer if he was trying to say that even an army officer cannot be tried or court-martialed in a military court.
Salman Raja responded that if the trial does not affect a person’s constitutional rights then it can be held in a special court, adding the rights are not violated in an ATC or banking court.
On being asked, the lawyer responded that no one’s trial has yet begun in a military court.
The CJP remarked that tomorrow is the last working day, and asked for relevant arguments to be made.
Justice Malik asked if the objection to the trial of civilians in military courts is limited to the extent of Article 175(3).
The FPLE case was related to the issue of an internal matter of retired soldiers with the army, she observed.
She then asked the lawyer to argue if civilians can be tried in military courts. “On what basis have you challenged the clauses of the law,” she questioned.
The CJP remarked that there were several verdicts related to military courts, asking if they also want to argue about the trial of soldiers in military courts.
“We are very simple people. Make the arguments you are making at Harvard University,” he remarked.
Salman Akram Raja replied that he was only arguing to the extent of trial of civilians in military courts.
To this, the CJP asked if a civilian can be deprived of basic rights. The lawyer said no one can be deprived of the right to fair trial just on the basis of an allegation.
The lawyer further said there were two types of civilians – those who offer services to the armed forces and are bound by the military discipline, and those who have nothing to do with the military.
The trial of the second type of civilians can only be held by an appointed judge under Article 175(3).
“How can we tell the military courts that they are not courts?” Justice Malik asked.
CJP Bandial asked if the military court verdicts can be challenged anywhere. The lawyer responded that they can be challenged before the army chief or a committee formed by him.
“You can say that the sphere of appeal in these courts should be expanded,” he added.
Justice Naqvi asked if the lawyer was saying the military court is a parallel system and cannot be called a court.
Salman Akram Raja responded in the affirmative, saying civilians do not get basic rights there. Under the Army Act, a trial in military courts is conducted for violation of discipline. And a civilian’s trial in military court is not a case of violation of discipline, he maintained.
Justice Akhtar asked if emergency is imposed in the country or fundamental rights are suspended, can civilians be then tried in military courts.
“Are civilians tried in military courts in this region?” Justice Malik asked.
The CJP asked the lawyer to refer to the decision on the 21st Amendment which mentions application of the Army Act on those who assault the armed forces.
Bench dissolved for second time
The Supreme Court bench hearing a set of petitions against the trial of civilians in military courts has been dismissed for the second time, after Justice Mansoor Ali Shah recused himself from the bench.
Justice Shah was part of the seven-member bench, headed by Chief Justice of Pakistan Umar Ata Bandial, hearing the at least four petitions against the trial of civilians in military courts.
Other members of the bench, besides the CJP and Justice Shah, included Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik.
Earlier, Justice Qazi Faez Isa and Justice Sardar Tariq Masood were also part of the larger bench, but they recused themselves.
Justice Isa had said until a decision on the Practice and Procedure Act, he did not consider this bench a ‘proper court’.
The hearing was then scheduled to resume at 11am when the CJP would constitute the bench afresh.
At the outset of Monday’s hearing, Justice Shah separated himself from the bench after the attorney general for Pakistan, representing the federal government, raised an objection that one of the petitioners was the judge’s relative.
The CJP told the AGP that benches cannot be formed on their wishes and whims, and asked him on what basis the objection was being raised on a member of the bench. He remarked that he had said on the first day that if someone had any objection to the bench they could say so.
The AGP said the federal government has directed that an objection be raised over Justice Shah.
As Justice Shah recused himself from the seven-member bench, the court was dismissed.
Petitioner Junaid Razzaq’s counsel Salman Akram Raja suggested Justice Shah reconsider his decision.
The judge remarked that he knew his conduct very well, adding if someone raised even a finger, he did not remain part of the bench.
The CJP asked if the objection was being raised due to conflict of interest, adding there is an entire series where objections are being repeatedly raised over the bench.
The bench is being made controversial once again, the CJP remarked. Sometimes it is said the right bench has not been constituted, he further said, adding the judges are also taunted for being “like-minded. What do you want?”
“We have always displayed patience,” CJP Bandial said, adding the court has not even punished those not obeying its orders.
He further asked if the government once again wanted to raise the issue of bias.
Nobody said holding elections in 90 days is a constitutional requirement, he added.
