ISLAMABAD – Supreme Court Gears Up for Historic Hearing on Legitimacy of Military Courts.
Chief Justice of Pakistan (CJP) Umar Ata Bandial took a momentous step on Wednesday by forming a nine-member larger bench to address the petitions filed by former CJP Jawad S Khawaja and others. These petitions question the trial of alleged rioters on May 9 in military courts.
Led by CJP Bandial himself, the larger bench comprises two of the most senior Supreme Court judges: Justice Qazi Faez Isa and Justice Sardar Tariq Masood. Notably, it marks the first time that CJP Bandial has included these two judges in a bench concerning a politically sensitive matter.
The supplementary cause list, issued by the SC’s assistant registrar on Wednesday, disclosed the names of the other bench members: Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi, and Justice Ayesha A Maik.
The bench will convene today [Thursday] to hear the petitions filed by former CJP Khawaja, senior lawyer Aitzaz Ahsan, Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan, and civil society, all of whom oppose the court martial of individuals accused of vandalizing state and army properties following the arrest of Imran Khan on May 9.
The inclusion of Justice Isa, who was already designated as the next CJP three months ago, has sparked a debate within legal circles. Since the enactment of the Supreme Court (Practice and Procedure) Act in 2023, Justice Isa has refrained from sitting on any court bench.
This case holds significant implications for Justice Isa due to various reasons.
During a bench hearing on petitions against the establishment of military courts following the attack on schoolchildren in December 2014, Justice Isa and former Justice Jawwad S Khawaja, among the minority judges, declared the trial of civilians in military courts as unconstitutional.
Some legal experts argue that if the larger bench is formed in consultation with the senior puisne judge, Justice Isa, it would be considered a victory for CJP Bandial. Otherwise, the composition of the bench might be seen as a result of judicial politics, making it unpredictable.
Former additional attorney general Tariq Mahmood Khokhar stated that if the nine-member bench is constituted through mutual consultation and consensus, it would signify a triumph for the CJP and the SC. However, if it turns out to be a unilateral decision by the CJP, the outcome becomes uncertain.
The bench consists of the seven most senior judges.
However, the inclusion of Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha Malik in the larger bench does not follow the order of seniority, leading to speculations about other considerations at play.
Advocate Abdul Moiz Jaferii believes that the formation of this bench is a last-ditch effort by the outgoing CJP to establish a legacy that transcends his controversial association with former prime minister and Pakistan Tehreek-e-Insaf chief, Imran Khan.
“It is a bench that might disintegrate as soon as the proceedings begin, given the presence of a certain SC judge. Several judges have expressed their reluctance to be involved with him,” he added. Recently, CJP Bandial made a remark suggesting that the inclusion of Justice Naqvi in the bench was a subtle message to those who had filed a reference against him for alleged code of conduct violations.
Questions have been raised about whether the CJP attempted to seek consensus before forming the bench.
Some senior lawyers believe that the court may request the petitioners challenging the military courts to first approach the high courts. The question of the maintainability of the petition will be a significant issue for the bench.
However, the bar associations unanimously oppose the trial of civilians under the army act. If the court rejects the petitions on technical grounds, the bench may face backlash from human rights activists.
Advocate Mirza Moiz Baig stated that while lawyers, bar associations, and judges themselves have urged the CJP to form more inclusive benches, these calls for inclusivity have yielded little results.
“Nonetheless, Justice Bandial’s decision to include Justice Isa, Justice Shah, and other judges who hold differing views in the bench is highly intriguing,” he remarked.
In his 2015 judgment, Justice Isa had expressed his belief that military courts violate citizens’ rights as enshrined in the Constitution. On the other hand, Justice Bandial held the opinion that such courts are not inconsistent with the Constitution’s fundamental structure.
Baig highlighted that Justice Bandial’s decision to include Justice Isa in the bench puts the latter in a challenging position.
“It remains to be seen whether Justice Isa will maintain his stance on military courts or recuse himself, considering that he has already expressed his views on the matter and has been previously restrained from hearing cases involving Imran Khan, who is one of the petitioners.”
“Questions arise as to whether Justice Isa’s inclusion in the bench aims to reduce divisions within the judiciary or is designed to put Justice Isa in a difficult position,” he added.
Hafiz Ahsaan Ahmad Khokhar pointed out that Section 2(d) and Section 59 of the Pakistan Army Act, 1952 were amended through Defence Services Ordinance No 3 and No 4 of 1967, introducing provisions for trying civilians in military courts.
According to Khokhar, the Supreme Court, through various judgments, consistently upheld the validity of these amendments, ruling that they are not contrary to the provisions of the Constitution and do not create new offenses.
Khokhar stated that since the matter involves interpreting the Constitution and striking down provisions of the army act, it would be more appropriate to constitute a full court with all available judges to hear these petitions.
He also emphasized that the present petitions challenge violations of fundamental rights. However, Article 8 provides an exception, stating that the Pakistan Army Act, 1952, the Pakistan Air Force Act, 1953, and the Pakistan Navy Ordinance, 1961 cannot be challenged as they are part of the Constitution’s fourth schedule.
“Thus, the question of maintainability of these petitions under Article 184(3) of the Constitution becomes significant, particularly when the Supreme Court has previously validated these challenged provisions through its judgments.”
Khokhar suggested that a bench with more than eleven judges would be appropriate for hearing the petitions, considering that eleven judges previously issued an order in favor of the constitutional amendment to the army act.
“Without suspending the impugned provisions of the act and without examining the legislative competence of the parliament and the previous SC judgments validating these provisions, it would be challenging for the bench to issue an interim order suspending the proceedings under the army act.”
Background:
On May 9, alleged supporters and workers of the PTI party vandalized and set fire to state and army properties and memorials following the arrest of PTI chief Imran Khan from a court in the federal capital.
