By Special Correspondent
ISLAMABAD: In a significant development, a nine-judge Supreme Court (SC) bench headed by Chief Justice of Pakistan Umar Ata Bandial will take up today (Thursday) a set of four petitions filed by former Chief Justice of Pakistan (CJP) Jawad S. Khawaja and others against the trial of alleged May 9 rioters by the military courts.
The larger bench comprises Chief Justice Bandial, Justice Qazi Faez Isa, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Sardar Tariq Masood, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Yayha Afridi, and Justice Ayesha Malik.
These petitions were filed by Barrister Aitzaz Ahsan, Karamat Ali, former CJP Jawwad S. Khawaja and Pakistan Tehreek-e-Insaf (PTI) Chairman Imran Khan. Mr Khawaja filed the petition through his counsel Advocate Khawaja Ahmad Hosain and requested the Court to declare the trial of civilians by the 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 had stated.
Members of the civil society through their counsel also sought as illegal the trial of civilians in the military courts in connection with May 9 violence.
Likewise, Barrister Aitzaz Ahsan, who also served as a law minister and also spearheaded the 2007 lawyers movement said 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 before the military courts be tried by the military courts.
Aitzaz further said he did not seek to scuttle any trial of any civilian before any lawfully established court of criminal jurisdiction.
In his petition, PTI chief Imran Khan sought a declaration against the arrests, investigation, and trial of civilians in peacetime under the Pakistan Army Act 1952 as well as the Official Secrets Act 1923.
Separately, Prime Minister’s Special Adviser on Accountability Irfan Qadir took strong exception to ex-CJ Jawad S. Khawaja’s challenge to the trial of civilians in the military courts, saying it was unprecedented that a former chief justice coming to the apex court as a litigant where he already served as the top judge.
To substantiate his point of view, Mr Qadir cited the example of Article VI of the Code of Conduct for the superior court judges which clearly states: “A judge should endeavour to avoid, as far as possible, being involved, either on his own behalf or on behalf of others, in litigation or in matters which are liable to lead to litigation such as industry, trade or speculative transactions.”
Article VI also stated that the judge will not employ the influence of his position to gain undue advantage, whether immediate or future, which is a grave fault, he said.
CJP Bandial’s decision to include Justice Qazi Faez Isa, Justice Mansoor Ali Shah and other judges whose views differ substantially from his own in the bench is most interesting.
In his 2015 judgment, Justice Isa had observed that military courts offend the rights of the citizens as enshrined in the Constitution. Justice Bandial had held that such courts were not inconsistent with the Constitution’s basic structure.
It would be interesting to see whether Justice Isa maintains his stance on the military courts or recuse himself given the fact that he has already expressed his views on the subject.
