Court has no magic wand to have its decisions implemented: CJP

CJP Bandial says court has shown utmost restraint so far

ISLAMABAD (Dunya News) – Chief Justice of Pakistan Justice Umar Ata Bandial, while hearing petitions against civilians' trial in military courts, said on Monday that court had no magic wand to have its decisions implemented and the judiciary had shown utmost restraint so far.  

Earlier, at the outset of third hearing of the case on Monday,  the federal government objected to inclusion of Justice Mansoor Ali Shah in the bench. Attorney General for Pakistan Mansoor Usman Awan took to the rostrum and conveyed the government’s objections to Justice Shah’s inclusion in the bench as one of the petitioners, ex-CJP Khawaja, was related to him. 

“One of the petitioners is Justice Shah’s relative. Therefore, it may affect his conduct,” AGP Awan said.  

However, CJP Bandial interjected and said, “The bench will not be made according to your whims. The chief justice said the court had shown utmost restraint so far. 

“Implementation of court decisions is a moral responsibility. We have no magic wand to have our decisions implemented.” “Many people have a stick but what is their moral authority?” he asked. 

The chief justice, addressing the the attorney general, said they were raising objections about the conflict of interest. “You are a lawyer of sound character and reputation. There is a whole series of repeated objections raised on the benches,” he observed. “You are once again making the bench controversial,” said the CJP. 

The top judge said he had also worked with Jawad S. Khawaja and he was not related to any political party. “How can you abrogate fundamental rights? the CJP asked. “What do you want by objecting to the members of the bench? Do you want to raise again an issue of like-minded judges? he said.

Expressing his anger, the chief Justice said the government should not mock the judiciary. He said the federal government itself was levelling accusations against the Supreme Court. He said the court would form a new bench but raising objections again and again was a disgraceful joke. “On what basis you are objecting to the honourable judge of this court?, the CJP asked. 

The attorney general replied that he personally had no objection to the judge's presence. 

Justice Mansoor Ali Shah remarked that on the very first day he had asked everyone that if anyone had any objection, he could let him know. He then recused himself from hearing the case after objections raised by the government over his inclusion in the seven-member larger bench. 

The chief justice dissolved the bench and re-constituted a six-member bench comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Naqvi and Justice Ayesha Malik. 

Petitioner Junaid Razak's lawyer Salman Akram Raja, opening the arguments, said the case of his client's son was in the military courts. He said the trial could only be conducted by a judge appointed under Article 175 of the FPLE case. 

Justice Muneeb Akhtar inquired whether officers of the armed forces could be court-martialled in military courts. Salman Akram Raja said that in the United Kingdom and the United States, military officers were tried in military courts under certain circumstances.

Justice Ayesha Malik remarked that the FPLE case was on the trial of retired army officers. 

Justice Muneeb Akhtar inquired whether he was saying that even an army officer could not be tried or court-martialled in military courts.

Mr Raja said that if his constitutional rights were not affected by a trial in a court, then the case could be tried in a special court. Constitutional rights were not affected in special courts like banking court or ATC. 

The chief justice inquired whether anyone's trial had started? Advocate Raja replied that no one's trial had started yet.

The chief justice remarked that he should not say anything based on assumptions. The chief justice inquired how he was linking Clause 3 of Article 175 with basic human rights. What was the relation of Clause 3 of 175 here? Raja replied no person could be deprived of the right to a fair trial. 

The chief justice asked Raja that how 175 was related to the Military Act. Raja said the Supreme Court had laid down the principle in a case that judicial affairs could be conducted only by the judiciary. The chief justice remarked that there were many judgements related to military courts.

Raja said no one else could exercise judicial powers under Article 175 –III. He said he was talking only to the extent of trial of civilians in military courts. 

Meanwhile, the Supreme Court rejected Salman Akram Raja's request to issue a stay order against working of military courts. The CJP sought details of 102 accused to be tried under the military courts.