• Senior puisne judge calls for settling dispute over formation of benches, Justice Tariq Masood endorses his colleague’s stance
• New seven-judge bench declines to stay trials by military courts; CJP reminds AGP about harassment of lawyers, detention of journalists

ISLAMABAD: Courtroom No.1 of the Supreme Court was left stunned on Thursday, with bitter polarisation among judges coming to the fore, after Chief Justice-designate Qazi Faez Isa said he did not consider the nine-member bench hearing appeals against military trials ‘a proper court’.

“I am not recusing (withdrawing) myself but I will not sit either and therefore [I am] rising,” observed Justice Isa. When Justice Isa stood up from his seat on the bench, everyone, even a visibly-disturbed Chief Justice Umar Ata Bandial seated next to him, asked Justice Isa to remain seated.

At the outset of the hearing, Justice Isa asked Attorney General for Pakistan (AGP) Mansoor Usman Awan to come to the rostrum and observed that Article 175(2) of the Constitution gives the courts the right to hear and that the oath expects from the judges to decide matters in accordance with the law.

The present hearing violates Section 2 of the Supreme Court (Practice and Procedure) Act 2023 which requires petitions under Article 184(3) of the Constitution to be placed first before a committee of three senior judges to determine which bench consisting of which judges should proceed with the matter, Justice Isa observed.

The larger bench then left the courtroom despite pleadings by counsel that petitioners and their families risked their lives by filing petitions and that the trials against the accused had commenced in the military courts.

Justice Sardar Tariq Masood also endorsed the point of view of Justice Isa and wondered why petitioners never questioned the violation of human rights when the Pakistan Army Act was in existence since 1952 and despite 1973 Constitution, many people were tried under the same law. Why the petitioners did not invoke Article 199 under which petitions could be filed before the high courts, Justice Masood asked.

Justice Isa’s grievance

Barrister Aitzaz Ahsan urged Justice Isa to keep the interest of people supreme and asked judges to resolve differences within the “home” in view of the onslaught from the outside. Justice Isa retorted that he had taken oath under the Constitution to preserve the law but the counsel was suggesting as if he should hear the matter by violating his oath for once. “Moreover, this is not a home but the Supreme Court constituted under the umbrella of the Constitution and therefore all of its matters should remain transparent,” the judge retorted.

Justice Isa also expressed his surprise over the issuance of the court roster constituting the bench late on Wednesday evening. Justice Isa also referred to his appointment as head of the three-man commission on audio leaks the proceeding of which was stayed. Likewise, he cited his March 15 order highlighting the need for regulating the exercise of Article 184(3) even before the law on the procedure and practice was introduced. But through a registrar circular, it was directed to disregard the same. Later a six-judge bench recalled the order on Article 184(3), Justice Isa reminded. He added that Imran Khan had filed the petition first but the cause-list suggested that the petition which was filed in the last was the first in the serial number.

Seven-member bench formed

Later, when a seven-judge bench reassembled to resume the hearing from the point where it was left, the CJP ignored a request to issue an interim or a stay order to stop the trial of civilians in the military courts. It was not possible without hearing the AGP first.

The CJP asked the AGP to come up with complete information on Friday as to how many people have been detained both in civilian or military custody in light of the May 9 violence under the Maintenance of Public Order (MPO), Official Secret Act (OSA), Pakistan Army Act (PAA), Pakistan Penal Code (PPC) etc.

While pointing towards the AGP, Justice Bandial reminded the grievances raised in the petition concerning the trials before the military courts. “The lawyers are being harassed,” the CJP observed, adding he has two or three examples to cite like whisking away of a person for six days.

Even Advocate Uzair Bhindari was detained for a few hours. “Thankfully, he was not mistreated,” the CJP observed and also alluded to firing on Advocate Sardar Latif Khosa’s house. Likewise, journalists should also be freed because their arrest was not right, the CJP observed.

“These things are fundamentals to the administration of justice,” CJP observed, also reminding that in such a situation no lawyer would appear to represent any accused person.

At the outset of the second round of the hearing, Justice Syed Mansoor Ali Shah observed if anyone had any objection to his sitting on the bench should come forward since one of the petitioners (Jawwad S Khawaja) was related to him.

Justice Ayesha A. Malik observed that Section 549 of the CrPC “deals with the handing over to the commanding officer of those personals who were members of the forces, not ordinary citizens. She said the secret act was also limited to the people working in the army, navy or air force.

The court expressed concern about the lack of any speaking order by the anti-terrorism courts before referring the matter to the military courts for the trials of civilians.

Advocate Sardar Latif Khosa while representing petitioner Aitzaz Ahsan regretted that the FIRs lodged against the accused did not mention any section for their trial under the military courts.

While issuing notice to the respondents, the court asked the AGP to furnish the total number of detained suspects in civil and military custody on account of offences allegedly committed by them on May 9.

Published in Dawn, June 23rd, 2023