ISLAMABAD: The Supreme Court will take up two important constitutional matters next week.

A six-judge bench will resume hearing on challenges to the trial of civilians in military courts on July 18.

Headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial, the bench consists of Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A. Malik.

And on July 21, an eight-judge bench will take up challenges to the Supreme Court (Practice and Procedure) Act 2023 — a law which sought to limit the powers of the top judge. The bench consists of the CJP, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Sayyed Mazahar Ali Akbar Naqvi, Justice Muhammad Ali Mazhar, Justice Ayesha A. Malik, Justice Syed Hasan Azhar Rizvi and Justice Shahid Waheed.

In the military trial case, the federal government had assured the apex court at the last hearing that no formal trial had commenced against 102 individuals who were under the custody of military authorities after the May 9 incidents of violence and arson.

Another bench to take up challenges to Supreme Court (Practice and Procedure) Act on July 21

Attorney General for Pakistan (AGP) Mansoor Usman Awan had told the court that all the accused were undergoing investigations and no trial would be conducted in a summary manner.

A nine-judge Supreme Court bench had commenced hearing on challenges to the trial of civilians by military courts, but Justice Qazi Faez Isa and Justice Sardar Tariq Masood opted out, with Justice Isa saying he did not consider the bench a properly constituted court.

Later on June 26, Justice Syed Mansoor Ali Shah recused himself when the federal government raised a belated objection to his inclusion in the seven-judge bench. On that day the AGP explained that he was under instructions by the government to request Justice Shah to consider withdrawing him from the bench since he was related to one of the petitioners — former CJP retired Justice Jawwad S. Khawaja.

Later Justice Shah explained in a note that he had withdrawn only to safeguard the public confidence in the integrity and impartiality of the court. But he stressed that judges should not readily accede to a request for their recusal and should take a decision only after thorough deliberation.

On June 27, Justice Yahya Afridi stressed the need to form a full court comprising all available judges to hear challenges to civilians’ trial in military courts.

‘Maintenance of harmony’

Justice Afridi called upon the CJP to constitute the full court by emphasising that propriety demands taking appropriate measures for “maintenance of harmony” within the court, the “integrity of the institution” and “public trust in the court”.

As a first step, Justice Afridi observed in his note, a full bench be constituted to hear the petitions since without taking such a measure, any judgement given by the present bench may lead to “diminishing of the deference” the decision requires and deserves.

Justice Sardar Tariq Masood issued a note to endorse the point of view of Justice Isa and explained he was not consulted by the CJP before including his name on the larger bench hearing challenges to the trial of civilians in military courts.

Justice Masood said his name was included without any consultation or ascertaining his availability.

Published in Dawn, July 14th, 2023