During yet another eventful day of proceedings, Chief Justice of Pakistan (CJP) Umar Ata Bandial said on Monday that he expected that no civilians would be tried in military courts while the matter was being heard in the Supreme Court (SC).

He made the remarks as a six-member SC bench, comprising himself, Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Sayyed Ma­­zahar Ali Akbar Naqvi and Justice Ayesha Malik, heard pleas challenging the military trial of civilians.

“I expect that no military trial [of civilians] will be conducted while proceedings are ongoing,” Justice Bandial said. He also said that all the 102 people currently in the military’s custody should be allowed to meet their families.

A six-member bench was formed earlier today after the government had raised objections regarding Justice Mansoor Ali Shah, citing the fact that one of the petitioners, Jawwad S. Khawaja, was related to him.

Justice Shah had subsequently recused himself from hearing the case, although he pointed out that this fact was highlighted at the very first hearing.

This was the second time the bench stood dissolved.

Originally, a nine-bench bench had been formed to hear the case. However, moments after the first hearing began, Justice Qazi Faez Isa had said he did not consider the SC bench “a proper court”, with Justice Sardar Tariq Masood also endorsing his point of view.

The hearing

The PTI chief’s lawyer, Hamid Khan, came to the rostrum at the start of the hearing and said that a number hadn’t been assigned to their plea. However, the CJP said the court would come to this issue later, adding that the judges had come back after recovering from a “setback”.

“Instead of arguments, other tactics are being used here,” Justice Bandial said. He noted that the plea filed by the PTI chief raised several requests but Khan told the court that he would only focus on the one against military trials.

Subsequently, lawyer Salman Akram Raja, representing petitioner Junaid Razzak, came to the rostrum. He referred to the British and American constitutions in his argument.

“Has anyone’s trial in [military court’s] begun,” CJP Bandial asked, to which Raja answered in the negative. The top judge then told the lawyer to not talk based on assumptions.

“In this way, the trial of military officers will also be discussed in the future,” Justice Bandial said. He noted that tomorrow was the court’s last working day and told the lawyer to talk about relevant matters.

He also questioned how Article 175(3), which mandates the complete separation of the judiciary from the executive, was applicable in this case.

Raja said that the article was based on the right to fair trial underlined in Article 9 and 10. “No one can be deprived of the right to fair trial,” he said.

However, CJP Bandial asked the lawyer to show the top court a judicial precedent which stated that Article 175 was linked with the Army Act. He also told the lawyer to not make “grand complications”. “Keep your arguments brief and relevant to the case,” he said.

During the hearing, Justice Ayesha asked when Section 2D of the Army Act, which empowers military courts to try civilians facing charges of terrorism or abetting terrorist activity, was applicable.

“Can a civilian be tried in military courts or not?” asked Justice Ayesha. She noted that the petitioner was challenging provisions of the Army Act but was not giving reasons for doing so.

“The SC has laid down the principle that judicial affairs can only be run by the judiciary,” Raja said. “No one else can exercise judicial powers under Article 175(3),” Raja said.

Raja further said that there were two kinds of civilians. “One is who renders a service for the armed forces,” the lawyer said, adding that such people were bound by “military discipline”.

He said that the second type were those who had nothing to do with the armed forces. He said that “complete civilians” could only be tried by a judge appointed under article 175(3).

“How can we say that military courts are not courts?” Justice Ayesha asked.

“Can the verdicts of military courts not be challenged?” CJP Bandial asked. Raja said that they could be challenged before the army chief or a committee formed by him.

“You can say that the scope of appeal in these courts should be expanded,” the CJP remarked.

Here, Justice Naqvi noted, “You are saying that military courts are a parallel system and can’t be called courts.”

Raja replied in the affirmative, highlighting that civilians were not dispensed basic rights during military trials. “According to the Army Act, trials are conducted in military court on displinary violations. But the trial of a civilian in military courts is not a matter of disciplinary violations,” he contended.

“This is a good point,” Justice Bandial observed.

Meanwhile, Justice Ahsan asked if the petitioner was challenging military trials to the extent of civilians. “You are not challenging trials of army officials, correct?” the judge asked. The lawyer replied that he was not challenging the trials of army officials.

At one point during the hearing, the CJP asked what the US laws said about civilians who rebelled against the state.

“In America, the trials of citizens who indulge in anti-state activities are conducted in civilian courts,” Raja replied.

Separately, Justice Akhtar asked if trials of civilians could be held in military courts if an emergency was imposed in the country and fundamental rights were suspended. Raja replied that the laws in the US were very clear about this.

The CJP noted that such trials were held in civilian courts.

Here, Justice Ayesha asked, “Are military trials of civilians held in our region?”

Raja responded that the practice was not followed in India.

At one point, Justice Bandial said that the decision under the 21st Constitutional Amendment should be seen. “It mentions the application of Army Act on those who take up weapons against the armed forces.”

The hearing was then adjourned for 45 minutes. When it resumed, the PTI chief’s lawyer Uzair Bhandari came to the rostrum and said that his side supported all the petitioners. “We want an open trial,” he contended, adding that the guilty should be punished.

He also called for forming a judicial commission to probe the events of May 9, when violent protests broke out in the country following the PTI chairman’s arrest.

However, the CJP told the lawyer to not talk about “political gains and aspirations” and to only talk about the law.

During the hearing, also questioned Attorney General for Pakistan (AGP) Mansoor Usman Awan about the petitioner’s complaints regarding harassment of their families and told him to look into the matter.

The hearing was subsequently adjourned for 9:30am tomorrow (Tuesday).

Justice Shah recuses himself after govt’s objections

Shortly after the hearing first began at 9:30am, Attorney General for Pakistan (AGP) Mansoor Usman Awan came to the rostrum and relayed 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.” Expressing his anger, the CJP said that the government “should not mock the judiciary”.

He asked on what basis the government was objecting to Justice Shah’s presence on the bench. “Are you objecting to the conflict of interest or bias?” he asked.

“We have always shown restraint. We didn’t punish those flouting court directives,” Justice Bandial said, adding that implementing the court’s directives was a “moral responsibility”.

He said that ex-CJP Khawaja was not a political person.

“You are a lawyer of great character and reputation. There is a whole series of objections regarding the bench being raised repeatedly,” Justice Bandial said.

Talking about the elections suo motu case, the CJP said that there was a discussion about whether the majority or the minority verdict stood. “You are making the bench controversial again,” he told the AGP.

This prompted Awan to state that personally he had no objections to Justice Shah’s presence on the bench.

For his part, Justice Shah stated that he had highlighted the fact that one of the petitioners was his relative at the very first hearing and asked those with objections come forward.

At the same time, however, the judge also recused himself from hearing the case.

The lawyers present during the hearing urged the judge to reconsider, saying that the case concerned fundamental rights.

“Try and understand, this is [a] judge’s own decision. I cannot hear this case,” Justice Shah told them.

A court order issued along with a note by Justice Shah, wherein he said it was of “fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.

“I strongly believe in this dictum of Lord Hewart and have expressed similar views in several cases that the ‘foundations of the judicial institution stand on, and its real strength lies in, the public trust which gives to its decisions legitimacy and public acceptance.’”

He added that “anything which undermines or even tends to undermine the public trust in the integrity, impartiality and independence of the judiciary must be circumvented.”

The judge said that ex-CJP Khawaja, a petitioner in the case, was his relative and was “disclosed” at the first hearing of the pleas in the open court on July 22, where it was asked whether anyone had any objection to him hearing the case.

“Counsels for petitioners in all petitions and the learned attorney-general for Pakistan replied that they had no objections,” he said.

Justice Shah then stated that Article 4 of the code of conduct for SC and high court judges mandated that judges must decline to act in cases involving their interests, including those of persons whom he regards and treats as near relatives or close friends.

Despite this, he said he did not initially recuse himself since his relative’s petition was filed in the public interest and hence, he believed the above stated clause of the code of conduct did not apply here.

“The said petitioner has, however, filed the petition in the public interest, not involving any interest of his own as he is not to be personally affected by the decision of these cases in either way. I, therefore, was of the view that the said Article was not applicable in this case, still I thought it right to ask the parties, at the start of the hearing, whether they had any objection to my sitting on the bench and hearing these petitions,” he explained.

“Further, I did not recuse myself from hearing these petitions on my own, as I thought that my recusal without any objection from any of the parties may amount to abdication of my duty to ‘preserve, protect and defend the Constitution’ in a matter of constitutional significance and public importance involving the question of enforcement of the fundamental rights to life, liberty, dignity, due process and fair trial,” the judge said.

Today, at the very outset, the learned attorney-general for Pakistan came up to the rostrum and stated that though personally he had no objection as expressed by him on the first day of hearing, but on instructions of the federal government, which he had obtained, he was submitting that “I may consider recusing from hearing these petitions”, Justice Shah said.

He added that in a constitutional court, it was “only for the judge concerned to decide according to his own conscience whether to recuse himself from hearing a case or not [and], he must in so deciding consider that his decision should not undermine the public trust in the impartiality of the court. For the appearance of his partiality would not only demean his reputation but also that of the institution of which he is a part”.

“The insistence on the appearance of impartiality in the dispensation of justice ’is not some artificial attempt to mask imperfection in the judicial process, but rather an essential means of ensuring the reality of a fair adjudication.

“Both the appearance and reality of impartial justice are necessary to the public legitimacy of judicial pronouncements and thus to the rule of law itself.’ Judicial impartiality upholds public trust, engenders predictability in the law, ensures fair trial, upkeeps the rule of law, and safeguards democracy. The principle of judicial impartiality, therefore, is not merely a moral imperative but a practical necessity to ensure justice, uphold democratic values, protect citizens’ rights, and maintain societal order,” he explained.

“It may, however, be underlined here that judges should not readily accede to the request for their recusal from hearing a case and decide the matter of their recusal after properly weighing the ground agitated for making such request. Where it is apparent that the perception of impartiality is being created for some ulterior motive without any sound basis, the judge must not yield to such strategy and abdicate performance of his duty.

“But if such a request is based on some reasonable ground which may genuinely raise doubt in the mind of a common person about the impartiality of the judge, the safest course for the judge is to accept such request in the larger interest of upholding public trust in the integrity and impartiality of the Court.

“In the present case, as the said petitioner is admittedly my relative, a common person may not understand the difference between a petition filed in the public interest and a petition filed for personal interest. I, therefore, in the present case, find it preferable to accept the request and recuse myself from hearing the case,” the judge added.

He thus said that he was recusing himself from the bench keeping in mind the above principles and reasons and to “safeguard the public trust in the integrity and impartiality of the court”.

‘Govt not allowing courts to make decisions’

Talking to the media outside the SC after Justice Shah’s recused himself, senior lawyer Latif Khosa — who is representing representing petitioner Aitzaz Ahsan in the case — said, “We cannot bear such allegations against the SC by the federal government.”

He said the government was “not allowing the courts to make decisions” and was disrupting fundamental rights. “They have thrown the Constitution in the trash,” Khosa added.

The lawyer went on to recall the CJP’s remarks from today’s hearing. “The CJP said the same things today. That the same attitude has been going on in which they (the government) are entangling us in [numbers].”

Khosa asserted that the judiciary had a “moral authority” that was accepted by the people and the world. He urged the government to “seriously think” about the matter.

The lawyer said he had informed the court and Justice Shah that the federal government could not raise the objection after it had already said two days ago that it had no issues with the bench.

“They cannot take a U-turn. Two days after the hearing, they have gotten a sudden revelation that an objection should be raised on [Justice] Mansoor Ali Shah sahib,” he remarked.

The pleas

The petitions in question were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan.

Khawaja, who filed the petition through his counsel Advocate Khawaja Ahmad, requested the top court to declare the trial of civilians by 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 stated.

Before this petition, five members of civil society from different cities, thro­ugh their counsel Faisal Siddiqi, sought as illegal the trial of civilians in the military courts in connection with the violence in the country of May 9.

Likewise, Ahsan, who has also served as a former law minister and also spearheaded the 2007 lawyers’ movement, explained 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 be tried by military courts.

The petitioner said he did not seek to scuttle the trial of any civilian before any lawfully established court of criminal jurisdiction.

In his petition, the PTI chairman sought a declaration against the arrests, investigation, and trial of civilians in peacetime under the Pakistan Army Act (PAA) 1952 as well as the Official Secrets Act 1923.