SC issues detailed order on hearing of petitions against civilians’ trial in military courts

The Supreme Court (SC) on Wednesday issued a detailed written order regarding the June 22 hearing of petitions against the trial of civilians in military courts by a nine-member larger bench, reported 24NewsHD TV channel.

The written order contains the notes of Justice Qazi Faez Isa, Justice Sardar Tariq Masood and Justice Mansoor Ali Shah.

"If I hear the cases now, I will violate my constitutional and legal position," said Justice Isa, adding that the CJP “has never denied his stance till today, but he did not even bother to answer.”

"I am aware that the chief justice has involved his colleagues in an unnecessary conflict for no reason and in my opinion, the CJP should not do this," he said, adding that a constitutional institution like Supreme Court could not run on the will of a single person.

“The Supreme Court (Practice and Procedure) Bill, 2023 applies to CJP Bandial and two senior judges. As the senior most judge, it is my duty to keep the direction right," he wrote in his note.

The note also said that a letter was written to CJP Bandial on May 17 in which the Supreme Court Practice and Procedure Bill was also referred. He said that the letter pointed out that the bench to hear cases will be constituted by the CJP a committee of two senior judges. 

"The law was not implemented as it was suspended by the SC even before it was enacted. I pointed out that any petition against the law would either be rejected or rejected," he noted. 

Justice Isa said that the chief justice has put him in a state of uncertainty and it can only be resolved if a decision is made regarding the petitions against this law or the stay order is withdrawn. 

He said that the bench hearing the petitions related to the Supreme Court (Practice and Procedure) Bill is headed by the CJP and he himself can answer when a verdict will be announced. 

"The interest of citizens therefore will be best served to postpone the hearing of this case, and of all other cases under article 184(3) of the Constitution, till the matters noted hereinabove are first attended to by making requisite rules in terms of article 191 of the Constitution," added the note. 

"In conclusion, let me categorically state that how my distinguished colleagues decide the pending petitions is their discretion. All that I look for, and which the country undoubtedly expects, is the earliest possible determination of the matter. I have been compelled to write this note in response to the aforesaid query of the Hon'ble Chief Justice. Since a number of my colleagues have enquired why I am not sitting in Court, I shall also be sharing this note with them," he concluded.

Justice Masood endorsed Justice Isa’s point of view and explained he was not consulted by CJP Umar Ata Bandial before his name was included on the bench.

He said that, surprisingly, these petitions had been fixed when just a day earlier one of the petitioners and his counsel met the chief justice in his chamber and on the next day these petitions were fixed without any consultation or ascertaining his availability.

“I was awaiting the decision in the petitions through which the Supreme Court (Practice and Procedure) Act 2023 have been challenged and expected that they would be decided soon as interim ex-parte stay order suspending the operation of the act,” he said.

When the stay order was passed against the act, Justice Masood said, he was reluctant to sit on a bench till the final decision of the petitions in which the act was challenged. But as he was heading a bench in which about 30 to 35 criminal cases used to be fixed daily of the citizens, who were in jail and waiting for the decision of their petitions/appeals against their conviction, he kept on dealing with the criminal work but requested the CJP for early disposal of the petitions filed against the act, Justice Masood said.

He regretted that these challenges against the military court trials had been filed by those who apparently were not detained nor facing trial with regard to the offences allegedly committed on May 9.

If a law was challenged, usually it was before the high court under Article 199 of the Constitution, he said. However, the petitions in question had been filed under Article 184(3), whose jurisdiction could only be invoked in the public interest to enforce fundamental rights, he said.

Justice Masood made it clear that he had not recused from the bench, hence there was no question to sign the purported order in which it had been mentioned that a new bench of seven judges would be formed, whereas his point of view was that these petitions be heard after the decision of the said petitions which had been filed against the act.

 

Reporter: Amanat Gishkori