The Supreme Court did not grant a stay of proceedings before the army court.
The highest court is requesting the “complete record” of the May 9 defendants.
ISLAMABAD — On Thursday, the Supreme Court heard petitions against the court martial of the people who vandalized army assets following the arrest of former premier Imran Khan, and the court ordered the record of all the alleged rioters in custody of civil or military authorities, including women and journalists.
Petitioners who argued that civilians should not be tried in military courts based on the Pakistan Army Act of 1952 and the Official Secrets Act of 1923 were all served with notices by the court. But it denied the petitioners’ request to halt the accused persons’ prosecution in military courts.
The court requests the following information from the learned Attorney General for Pakistan (AGP) who is present today:
“The total number of people who are being held in civil and military custody for violations of any law that happened on or after May 9, 2023.
A brief order was made following the hearing, reading in part, “[He should also inform the court as to] how many of such detenues are women and juveniles [and] how many advocates/journalists are in civil and military custody.”
Justice Qazi Faez Isa brought up several concerns when a nine-member bench chaired by Chief Justice of Pakistan (CJP) Umar Ata Bandial began hearing petitions filed by former CJP Jawwad S. Khawaja, Imran Khan, Pakistan Peoples Party (PPP) leader Aitzaz Ahsan, and civil society.
Justice Isa, who had been told she would be the next CJP three months in advance, disagreed with the panel’s decision. According to him, the Supreme Court (Practice and Procedure) Act, 2023, which specifies how to establish benches in cases involving Article 184(3), has been passed by parliament.
According to him, Article 184(3) requires the CJP to consult with senior SC judges before the Supreme Court can exercise its original jurisdiction.
Any breach of citizens’ fundamental rights constitutes a matter of “public importance” under Article 184(3). According to the aforementioned article, the court has the authority to investigate a subject “suo motu,” or on its own initiative, without first receiving a formal complaint or petition.
For example, Justice Isa once remarked, “I was surprised when I saw the cause list at 8pm [on Wednesday] that a case was scheduled for hearing today, in which I was included as part of a larger bench of eight judges.”
He claimed that before the Supreme Court (Practice and Procedure) Act, 2023 was even signed into law, an eight-judge bench temporarily halted its implementation. According to him, the bench has heard arguments about the challenges to the statute but has yet to make a final decision.
So until the court makes its ruling on the current legal situation, “I have decided not to sit in any court bench and do chamber work.” He clarified that he will remain on the bench to hear the matter at hand, but that the Supreme Court (Practice and Procedure) Act, 2023 is a priority.
The Honest Sardar The third-highest ranking judge on the bench, Tariq Masood, sided with Justice Isa. Specifically, he wanted to know how many judges would hear an appeal if the Supreme Court ruled that the SC legislation was constitutional.
On March 30, Justice Isa presided over a special bench consisting of three other judges and ruled that any matters brought under Article 184 (3) should be put on hold until the Supreme Court Rules governing the CJP’s discretionary powers to establish benches could be revised.
He noted that on April 1 the registrar of the Supreme Court issued a circular “disregarding the majority judgment.” In his opinion, the circular proves the “worth of the SC,” as Justice Isa put it.
The senior puisne judge noted that on April 4, a larger bench of six judges reversed his decision regarding the CJP’s authority to issue suo motu notices and form benches.
I was not included in the panel that reversed the March 30 decision. It’s unclear to me whether or not the bench was considering an appeal of my order.
According to the judge, he explained why the six-judge bench couldn’t overturn his March 30 verdict in a note he penned on April 8. “However, the SC website no longer features that announcement.”
In addition, he mentioned that he was appointed to lead an investigation into more than a half-dozen tapes that included the voices of some current and past members of the higher judiciary, as well as their families.
However, the commission was unable to complete its mandate because of a five-judge panel on the Supreme Court. According to him, “the bench never notified the commission or asked for its response.”
He mentioned that four appeals were submitted against military tribunals. Former Chief Justice Jawwad S. Khawaja filed a petition quite recently, yet it was listed as item 1 on the “cause list.”
Justice Isa compared the situation to that of an airplane piloted by an inexperienced individual. While the future of the Supreme Court (Practice and Procedure) Act, 2023 remains uncertain, sitting on the bench is akin to riding in a jet piloted by an amateur. He further added, “our procedure should be completely transparent,” after a plane tragedy claimed the lives of hundreds of people.
Aitzaz Ahsan likened the disagreements on the Supreme Court to family feuds, while Justice Isa strongly disagreed. “With all due respect, Mr. Khan, we are in the Supreme Court of Pakistan, not your living room.”
Aitzaz’s lawyer, Latif Khosa, was questioned by Justice Sardar Tariq Masood, who also asked him why he hadn’t come to court when civilians were tried in military courts. Asking, “Also tell us why you moved the apex court and not the high court first?”
Faisal Siddiqi, a lawyer for the civil society, pleaded with the bench to handle the case, saying that many people’s lives were at danger. As the bench rose, the CJP stated that the court would investigate the situation.
The seven remaining judges, except Justice Isa and Justice Masood, resumed hearing the case after a short break. After hearing Khosa’s and Siddiqi’s arguments, the bench ordered the arrest records of everyone who had been detained since May 9.
However, the court refused to halt the military court proceedings.
Every issue can be solved by issuing a stay order. The CJP expressed his or her sincere wish that civilian trials had not yet begun in military court. When speaking to the AGP, he made the following statement: “We will not issue any order without hearing your standpoint.” The case will be heard again in court today (Friday).
