ISLAMABAD: A day before the scheduled hearing, a group of civil society activists on Monday requested the Supreme Court to refer the pending petition challenging the trial of civilians by military courts to the chief justice of Pakistan (CJP) for the constitution of a full court.

“The full court should include all judges willing and available for the adjudication on the fundamental and complex constitutional and legal questions,” argued the fresh application moved under Order 33 Rule 6 of the Supreme Court Rules 1980.

On July 27, the civil society activists had asked the Supreme Court to allow them to become intervener to assist the court for effectually adjudicating upon the pending matter relating to the trial of civilians by military courts in connection with the May 9 acts of violence and arson.

Earlier, the Supreme Court had rejected the federal government’s plea to constitute a full court for the case.

Moved through senior counsel Faisal Siddiqi, the fresh application appreciated the judicial courage and sense of constitutional duty shown by all members of the present six-judge bench, including Justice Mansoor Ali Shah whose inclusion was “illegally and malafidely” objected by the government to hear the petition as well as all connected petitions on an urgent basis.

All judges willing and available for adjudication on constitutional, legal questions should be included in full court,say civil society activists

The application argued that different orders by the court had acted as a barrier against the “grave injustices allegedly being caused to the accused facing court martials/military courts for the May 9 violence.”

Such judicial courage as well as the sense of constitutional duty has indeed already been recorded as extraordinary in the annals of judicial history, the application stated, adding anything contained in this present application should not be read or viewed as distracting or minimising the petitioners’ acknowledgement and appreciation of the bench.

“The present petition concerning the constitutionality and legality of the trial of civilians by military courts under the Pakistan Army Act 1952 is one of the most important cases in Pakistan’s judicial history as it was a matter of grave public importance and would determine the future of fundamental rights in this country.”

It said one of the primary reasons for the constitution of the full court was that various statements had been made by politicians and sitting ministers of the present government questioning the legitimacy of the present bench. Moreover, the present government has consciously and deliberately violated different judgements and orders of the court relating to the holding of elections to the Punjab Assembly.

The petition feared that the present government and state officials may also subvert the implementation of any judgement in the present case.

It contended that two lessons could be drawn from past judicial history and judicial practice that no judgement of the full court had ever been subverted or not implemented by the state, including military dictators. Secondly, all past matters of major constitutional importance and complexity, including cases involving constitutionality of military trials, had been heard by larger benches of nine judges and above or by full courts.

Moreover, two members who are and were hearing the present petitions - Justice Yahya Afridi through an order dated June 23 and Justice Mansoor Ali Shah through a June 22 order - had suggested to the CJP to constitute the full court for the present controversy.

The application added that the petitioners would have no objection if all the judges of the Supreme Court were part of the proposed full court.

“It is categorically stated that unlike the government’s malafide actions, the petitioners have no objection, whatsoever, on any judge willing and available to hear this case,” it added.

Published in Dawn, Aug 1st, 2023