• Justice Bandial says verdicts of army courts ‘not subject to judicial review’
• Explains why constituting full court may not be possible at the moment
• Expresses satisfaction over treatment of suspects facing military trials

ISLAMABAD: Chief Justice Umar Ata Bandial on Tuesday observed that civilians should not be put through the rigours and harshness of military courts, since they enjoy certain constitutional protections, and besides, such trials were not according to the Constitution.

“The military law is a tough law and meant to be different from the ordinary law that may be good for military personnel only,” the CJP observed while heading a six-judge bench hearing petitions assailing the trial of civilians in military courts.

One of the concerns about such trials, the CJP observed, was that the verdicts of a military court were not open to the public, nor subject to judicial review.

The observation came when Att­o­rney General for Pakistan (AGP) Mansoor Usman Awan cited a June 23 note by Justice Yahya Afridi, in which the judge had urged the CJP to consider reconstituting a full court consisting of all available judges to hear the matter.

Ironically, Justice Afridi’s note was not available in the order sheet and the court staff had to take a few minutes to locate the same. Justice Ayesha A. Malik, one of the members of the bench, also pointed out that the order sheet did not contain the note and that the AGP had also not attached it with the federal government’s concise statement.

Pointing at the AGP, Justice Bandial observed that the law officer “has left us with a thought which needed to be considered”, but in the same breath, he explained the practical difficulties in the constitution of the larger bench.

The CJP said three judges had already recused themselves from the bench, while some judges were away. “At this stage, it seems the constitution of the full court is not possible, besides it will also delay the hearing since we have to start it all over again,” he observed before postponing the hearing for Wednesday.

Justice Bandial stressed that each member of the court “enjoys his highest respect and regard and he always treats their comments with a desire to comply with their opinions”.

He added that he had read the Justice Afridi’s note saying one must notice the grace shown by the judge when he emphasised the need for forging the trust and credibility of the court.

Justice Bandial also expressed surprise over the objection made by the government on June 26, seeking the recusal of Justice Mansoor Ali Shah. “Why should this happen,” he wondered, recalling the law was very clear wherein it had been held that in the public interest litigations, interests of judges are not involved and therefore judges did not need to withdraw. He added the judge showed grace by disassociating from the bench.

Treatment of those in military custody

Justice Bandial, however, expressed his satisfaction that the individuals under the custody of the authorities have been allowed to meet their family members and that the authorities were extending a certain degree of respect to civilians.

He also referred to the arguments of Sardar Latif Khosa and Barrister Aitzaz Ahsan, who had requested that the cases of the accused of May 9 violence be heard by the anti-terrorism courts (ATC), rather than the military courts.

Soon after the hearing, former additional attorney general Tariq Khokhar commented that the military courts’ case “could yet be this CJP’s finest hour”.

Earlier, the AGP argued that the vires of Section 2(1)(d)(i) and Section 54 of the Pakistan Military Act (PAA) have been challenged under Article 184(3) of the Constitution for the first time, therefore the court should consider forming a larger bench.

At this Justice, Ayesha A. Malik asked the AGP to read the order of June 26 when the remaining judges of the bench had asked the CJP to reconstitute the bench.

“Don’t make half-baked objections,” Justice Malik observed while pointing towards the AGP.

“Are you suggesting that we need more than 17 judges to hear the matter which is not possible and now you say that we should reconstitute the bench with all the available judges when some judges have recused,” she said.

Justice Munib Akhtar also observed that the bench was constituted on June 26 after the judges realised unanimously that the present case was a part-heard matter.

During the hearing, Irfan Qadir on behalf of the defence ministry repeatedly tried to take the rostrum, but the AGP requested him to take his seat; rather at one point he even changed the direction of the microphone away from the counsel.

Published in Dawn, July 19th, 2023