The Supreme Court (SC) on Wednesday rejected a plea seeking the formation of a full court to hear petitions challenging the military trials of civilians.

The reserved verdict was announced by a six-member bench comprising Chief Justice of Pakistan (CJP) Umar Ata Bandial, Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Sayyed Mazahar Ali Akbar Naqvi and Justice Ayesha A. Malik.

A day earlier, the six-judge bench had 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 counsels 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.

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 the constitution of a full court would either be announced in 15 minutes or litigants will be informed about the final outcome on Wednesday (today).

During the hearing today, Justice Bandial called Faisal Siddiqi to the rostrum and said, “We discussed the formation of full court among ourselves.”

Addressing the senior counsel, the top judge said Siddiqi was a respectable lawyer but requested him to not file petitions like the one seeking the formation of a full court.

“We have seen that a full court was formed in the past but it could not sustain in such circumstances,” the CJP pointed out. He further said that a full court was unavailable till September.

The top judge recalled that larger benches were formed twice in the case at the hand but were unable to complete proceedings in the case. “It is impossible to hear the case by forming a larger bench,” he said.

Justice Bandial also said that the court did not care about criticism and “leaves what is right and wrong to history”.

“We will continue our work whether someone likes it or not,” the CJP remarked and directed the counsels to resume their arguments.

Today’s hearing

At the outset of the proceedings, Attorney General for Pakistan Mansoor Usman Awan told the court that the 102 suspects in military custody were allowed to meet their families and assurances had been given.

He went on to say that matters pertaining to a counsel of choice and detailed decisions were also discussed. “We have also ensured that none of the suspects would be sentenced to death or life imprisonment.”

“The dignity and respect of all 102 persons are guaranteed,” Awan promised, adding that none of the suspects were mistreated.

Yesterday, the AGP continued, lawyer Latif Khossa had complained of the ill-treatment of suspects. “I checked myself, none of them were treated badly,” he assured the court, adding that the suspects were given proper medical facilities.

Action would be taken if any of the suspects are mistreated, he added.

At one point, Justice Ayesha asked, “How will you differentiate between the scope of the judiciary and legislature when it comes to military courts?”

The AGP replied that the scope of court martial had been separated and read out the SC’s verdict in a similar case.

At this, the CJP asked Awan if he was saying that military courts were not in accordance with the law.

“These courts were constituted under the law but were an exception to Article 175 of the Constitution,” the AGP said, explaining that court martial didn’t fall under the said law.

“If true, doesn’t this make arguments of petitioners correct?” Justice Akhtar asked here. “The petitioners are saying the same that civilians have fundamental rights and this can only be seen by courts established under Article 175.”

Meanwhile, Justice Afridi asked which court would the 102 suspects in military custody tried in. “Martial law courts or military courts?”

“Their trial will be held in military courts,” the AGP replied.

On the other hand, the CJP asked, “What will happen if military courts themselves grant the right to appeal to constitutional courts? Military courts would then not be under the supervision of any high court? Will military courts fall under the ambit of Article 175 in such a situation?”

Yes, the AGP replied, adding that military courts would become “common courts” with the right to appeal.

Justice Ayesha highlighted that the fundamental rights of citizens were linked to courts constituted under Article 175. “How will these rights be dispensed to them in military courts?”

Here, Justice Akhtar said military courts could not serve as a parallel judicial system for civilians. Justice Ahsan also added that a civilian should be directly related to the armed forces to be sent to military courts.

Responding to the judges, the AGP said he had noted all the questions.

“In the past two weeks, several laws have been approved … amendments have been made to the Army Act,” he stated, adding that he was able to attend some committee meetings and was aware of some changes made to the law.

“You are giving this statement in front of the bench,” Justice Naqvi noted, to which Awan replied that he was just stating facts.

The AGP further elaborated that four matters needed to be carefully examined to give the right to appeal to civilians tried under military laws. “We will have to see if overseas citizens, involved in conspiring, are eligible for this right or not.”

“We will also have to see if the Army Act applies to civilians who attacked military installations,” he added.

Awan further stated that he had taken directives “directly from the General Headquarters” on the case given the expiry of the government’s tenure was around the corner.

“Continue your arguments if the response is positive,” Justice Bandial said, adding that he would revisit judicial precedents mentioned by the attorney general for clarification.

Subsequently, the hearing was adjourned till tomorrow (Thursday).