A six-member Supreme Court bench on Wednesday suspended its Oct 23 unanimous ruling, wherein it had nullified military trials of 103 civilians, pending a final ruling.
The verdict, announced on a set of intra-court appeals (ICAs) challenging its previous order, was made with a majority of 5-1 as Justice Musarrat Hilali objected to it.
In the widely praised ruling, a five-member SC bench — comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik — had declared that trying 103 civilians in military courts for their alleged role in attacks on army installations during the riots that followed ex-premier Imran Khan’s arrest on May 9 was ultra vires the Constitution.
The apex court had declared that the accused would not be tried in military courts but in criminal courts of competent jurisdiction established under the ordinary or special law of the land.
The appeals have been filed by the caretaker federal government as well as the provincial ones in Balochistan, Khyber Pakhtunkhwa and Punjab.
Meanwhile, Sindh has denied filing a purported plea on the same matter, which is not included among the petitions being taken up today.
The defence ministry had also moved an ICA before the SC against its judgment, requesting the apex court to suspend the verdict’s operation during the pendency of the appeal.
On Monday, Justice Ijazul Ahsan, who is a member of the three-judge committee constituted to fix cases before different benches, had objected to the bench, saying it should be “deemed as not set up by the committee”.
Justice Ahsan recalled how during the fifth meeting of the committee, it was agreed that since the judgment in the trial of civilians by military courts had been rendered by a five-judge bench, a seven-judge bench should be constituted to hear the ICAs. Instead, a six-judge bench was formed, with Justice Sardar Tariq Masood as its head.
“I categorically and in clear terms stated that in order to dispel any impression of pick and choose, all judges of this court in the order of seniority be included in the appellate bench,” he had stated in a letter to the committee’s secretary.
Separately, former chief justice of Pakistan (CJP) Jawwad S. Khawaja, who is one of the petitioners to challenge the military trials, has also objected to Justice Masood’s inclusion in the bench.
He stated that Justice Masood, along with CJP Qazi Faez Isa, had recused from being a part of the nine-member bench hearing pleas against the military trials.
Today, the Justice Masood-led bench — including Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan — took up 17 ICAs.
During the hearing, Attorney General of Pakistan (AGP) Mansoor Usman Awan urged the court to conditionally allow the military trials of civilian suspects to be resumed.
In its verdict, he SUpreme Court
نو مئی کے واقعات میں ملوث 103 افراد کا ٹرائل جاری رہے گا، سپریم کورٹ
فوجی عدالتیں تمام گرفتار ملزمان کے خلاف حتمی فیصلہ جاری نہیں کریں گی، سپریم کورٹ
The hearing
At the outset of the hearing, Justice Masood refused to recuse himself from the bench due to the objections raised.
He suggested to the counsels to read a previous verdict by former Justice Jawwad S Khawaja, adding that it was up to the judge to remain a part of the bench or recuse themselves.
Here, Advocate Latif Khosa, the counsel for Aitzaz Ahsan, who was one of the petitioners against the military trials, objected to the formation of the bench, at which Justice Masood asked him whether he had been issued a notice as a respondent in the case.
“When the respondents will be notified, then we will see your objection,” the judge remarked.
Khosa emphasised he objected as the judge was currently presiding over the case. Faisal Siddiqui, the counsel in pleas filed by civil society members, argued that the government cannot avail the services of a private lawyer.
To this, AGP Awan replied that all legal requirements for the services had been fulfilled and urged the court to first hear the petitioners who had filed the ICAs.
Advocate Salman Akram Raja then asserted that the Supreme Court could not “suspend the verdict nullifying the [military] trials without listening” to counsels in the original pleas.
Khosa then argued that arguments are presented if there are objections to the judges hearing the case. Raja said that if they objected once the respondents were notified, the case would have been “affected”.
Khosa further said that Justice Masood had already voiced his opinion on the case in a previous note, following which the judge reiterated that he would not recuse himself from hearing the appeals.
Here, AGP Awan questioned how the objections could be entertained when the notices had not been issued on the ICAs yet. “The one who objected is himself not present in the court,” he added.
He urged the SC to begin hearing arguments on the appeals first, which the court accepted.
At this point during the hearing, Shumail Butt, the counsel for Balochistan’s Shuhada Forum, began presenting his arguments.
Aitzaz Ahsan then came to the rostrum and urged the court to first decide on the objections raised on Justice Masood’s inclusion, at which the judge once again stated he was not refusing himself.
Justice Mazhar then told the Shuhada Forum lawyer that he would have to edit the appeal after a detailed order was issued.
When Justice Masood directed the AGP to begin presenting his arguments, the latter expressed he would like to offer defence ministry counsel Khawaja Haris the chance to do so first.
Haris then came to the rostrum and argued that the apex court’s Oct 23 verdict did not mention according to which articles of the Constitution, provisions of the Army Act were declared unconstitutional.
He cited a previous case of retired Brig F.B Ali, wherein he said the Army Act’s sections were upheld, adding that a 17-member full court had also declared the judgement as correct when hearing a case on the 21st Amendment.
The defence ministry counsel added that the Supreme Court had previously ruled that if the crime pertained to the military, then the trial could be held in a military court.
At this point, Justice Mazhar inquired the lawyer about his opinion on a “transparent trial” being held and asked how he would ensure that a “fair trial” was held in the military courts.
To this, Haris responded that civilians also included people such as Kulbushan Yadav“, referring to an Indian spy who was captured in Pakistan.
He argued that the Army Act’s jurisdiction over civilians was “already limited” and that provisions pertaining to civilians “could not be declared void”.
Justice Masood then noted that a detailed verdict on the judgment nullifying military trials had not been issued yet, asking if the court should decide the matter without reviewing that.
Here, Justice Saadat also asked, “Khawaja Haris sahib, why not wait for the detailed verdict?”
To this, the lawyer said his request would then be that the apex court allows to resume the military trials of those currently in the military’s custody.
Khosa voiced his objection to a stay order on the court’s Oct 23 verdict, saying that the judges who made that decision were also Supreme Court judges.
Justice Masood asked rhetorically, “Then why was this appellate court made?”
The appeals
The ICAs claim that through the order, the SC had traversed beyond its jurisdiction and excluded from the ambit of the Pakistan Army Act (PAA) 1952, civilians who may be guilty of committing offences specified in Section 2 (d)(1) of the PAA, thereby considerably undermining the ability of armed forces to discharge their constitutional duty to defend Pakistan against external aggression or threat of war and thus violating the very letter and purport of Article 245 (1) (functions of armed forces) of the Constitution.
The appeals questioned whether seducing or attempting to seduce any person who was subject to PAA from his duty or allegiance to government, or commission of any offence under the Official Secrets Act 1923 — in relation to any work of defence, arsenal, military establishment or station or military affairs of Pakistan — by civilians were not acts having direct nexus with armed forces.
Thus the civilians accused of these offences are legally triable under PAA as held in and on the touchstone of the principle laid down in a previous case of retired Brig F.B Ali.
