ISLAMABAD: The Supreme Court will decide today (Wednesday) whether it should reconstitute the present six-judge bench into a full court to proceed with challenges against the trial of civilians by military courts.

But before postponing the decision for Wednesday, the six-judge bench tried to hear out the counsel representing different petitioners on how to deal with a fresh application moved by senior counsel Faisal Siddiqi requesting the formation of a full court, consisting of all the available judges, to hear the matter.

Almost all counsel representing different petitioners opposed the idea, though Advocate Khwaja Ahmad Hosain, on behalf of former CJP Jawwad S. Khawaja, sought time to seek fresh instructions from his client.

He called for urgency in dealing with the matter since it involves liberty of 102 accused.

The full court request was, however, described by Barrister Aitzaz Ahsan — one of the petitioners — as an attempt to deprive the court of its “finest moment” in the country’s judicial history to be performed at the hands of Chief Justice Umar Ata Bandial.

He suggested the court order transfer of the accused persons to judicial custody so that no physical harm is done to the detained persons since the “state does not have sufficient material to have physical custody” of the accused.

But before retiring for the day, the CJP observed that the decision regarding constitution of a full court would either be announced in 15 minutes or litigants will be informed about the final outcome on Wednesday.

Advocate Sardar Latif Khosa suggested the present bench proceed with the case on day-to-day basis so that a decision was reached within a week.

“The fresh application (for full court) is a joke,” he remarked, adding the petitioners had faith in the present bench.

Latif Khosa said 102 accused were languishing in jails and families were even being denied access to lawyers.

Counsel like Salman Akram Raja, Abid Shahid Zuberi and Shoaib Shaheen also opposed the idea, saying the apex court’s decision would be binding, whether it was delivered by the full court or a six-judge bench.

They contended that a decision regarding full court would further delay the matter, which demands swift action since fundamental rights were at stake.

Shoaib Shaheen likened the present situation to martial law as “people are being picked with impunity and not being freed even after being given bails by the courts”.

Arguments in favour of full court

Earlier Faisal Siddiqi, who has sought the constitution of a full court, argued that since Attorney General for Pakistan (AGP) Mansoor Usman Awan had already held out an assurance that trial of civilians by military courts would not lead to the death penalty and that trials won’t commence without informing the Supreme Court, “no harm will come if the proceedings are postponed for a month” and the full court takes up the case.

“There was a great urgency earlier, but after the AGP’s assurance, a little bit of delay will not be fatal,” he argued.

“This court is very dear to my heart. but the way it is being ridiculed hurts me. It will be in the fitness of things to counter a contemptuous criminal attitude of the present government by constituting the full court.”

The fresh application appreciated the “judicial courage” and “sense of constitutional duty” shown by all members of the six-judge bench, including Justice Mansoor Ali Shah. The government had earlier objected to his inclusion since he is related to retired Justice Jawwad S. Khawaja, one of the petitioners.

Faisal Siddiqi argued that different orders by the court had acted as a barrier against “grave injustices” allegedly being done to the accused facing court martial or military courts over the May 9 violence.

Published in Dawn, August 2nd, 2023