SC suspends its earlier decision of voiding military court trial of civilians
Pakistan
The bench was headed by Justice Sardar Tariq Masood
ISLAMABAD (Dunya News) - A six-member bench of the Supreme Court on Wednesday suspended its earlier verdict of voiding the trial of civilians in military courts.
The court announced the verdict on a set of intra-court appeals (ICAs) filed against the ruling.
The bench was headed by Justice Sardar Tariq Masood and it included Justice Aminuddin Khan, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan.
The court announced the verdict with 5-1 majority. Justice Musarrat Hilali is the only judge to have opposed the decision. The ruling means trial of civilians in military courts will continue till final decision on the appeals.
The appeals were filed by caretaker federal government and provincial governments of Balochistan, Khyber Pakhtunkhwa and Punjab.
The defence ministry had also moved an ICA before the SC against its judgement, seeking suspension of the verdict’s operation during the pendency of the appeal.
During the hearing, Attorney General of Pakistan (AGP) Mansoor Usman Awan urged the court to conditionally allow the military trial of civilian suspects. The Supreme Court said the trials of 103 civilians would continue.
Observing that the military courts would not issue a final verdict against the suspects, the SC said the final ruling would be conditional upon the apex court’s orders.
The proceedings
As the hearing started, Justice Masood refused to recuse himself from the bench due to objections raised against him.
He advised the counsel to read a previous verdict by former Justice Jawwad S. Khawaja and added it was up to the judge to remain a part of the bench or recuse themselves.
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. Justice Masood asked him whether he had been issued a notice as a respondent in the case.
The judge remarked that when the respondents would be notified, the court would listen to his objection.
Khosa said he objected as the judge was currently presiding over the case.
Faisal Siddiqui, the counsel for civil society members, contended that the government could not avail services of a private lawyer.
AGP Awan replied all legal requirements for the services had been met and urged the court to first hear the petitioners who had filed the ICAs.
Advocate Salman Akram Raja said the Supreme Court could not 'suspend the verdict without listening' to counsel in the original pleas.
Khosa said 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 person who had objected was himself not present in court, he added.
He requested the SC to begin hearing arguments on the appeals first, which the court accepted.
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 take a decision on the objections raised on Justice Masood’s inclusion, at which the judge once again stated he was not recusing himself.
Justice Mazhar then told the Shuhada Forum lawyer that he would have to edit the appeal after a detailed order was issued.
Defence ministry counsel Khawaja Haris 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 FB Ali, wherein he said the Army Act’s sections were upheld, adding that a 17-member full court had also declared the judgement correct when hearing a case on the 21st Amendment.
The defence ministry counsel said as per Supreme Court's previous ruling, if the crime pertained to the military, 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.
Haris responded that civilians also included people such as Kulbushan Yadav, 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 judgement 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?” 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 the judges who made that decision were also Supreme Court judges.
Justice Masood asked then why was this appellate court made. The court then reserved the verdict which was announced later.
Earlier, a five-member bench of Supreme Court had nullified the military trial of 103 civilians on Oct 23.
Also Read: SC voids trial of civilians in military courts in landmark verdict
The five-member bench comprised Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik.
The intra-court appeals were filed by the caretaker federal government as well as the provincial governments of Balochistan, Khyber Pakhtunkhwa and Punjab.
Read More: Punjab challenges SC's decision on civilians' trial in military courts
Meanwhile, the defence ministry had also moved an ICA before the apex court against its Oct 23 judgement.
