Supreme Court suspends its verdict nullifying military trials of civilians

The Supreme Court on Wednesday suspended its unanimous verdict of October 23 regarding nullifying military trials of over 100 civilians allegedly involved in May 9 vandalism, pending a final ruling, reported 24NewsHD TV channel.

A six-judge larger bench of the apex court announced the majority decision 5-1 on a set of intra-court appeals (ICAs) challenging its previous judgment. Justice Musarrat Hilali dissented from the ruling.

The larger bench was headed by Justice Sardar Tariq Masood and its other members were Justice Ameenuddin Khan, Justice Muhammad Ali Mazhar, Justice Hassan Azhar Rizvi, Justice Musarrat Hilali, and Justice Irfan Saadat Khan.

In its October 23 verdict, a five-member Supreme Court bench, comprising Justices Ijazul Ahsan, Munib Akhtar, Yahya Afridi, Syed Mazahar Ali Akbar Naqvi and Ayesha Malik, had declared that trying 103 civilians in military courts was ultra vires to the Constitution.

The 17 appeals were filed among others by the caretaker federal government, defence ministry and interim provincial governments of Balochistan, Khyber Pakhtunkhwa and Punjab.

Separately, former chief justice of Pakistan Jawwad S Khawaja, who is one of the petitioners to challenge the military trials, also objected to Justice Masood’s inclusion in the bench. He stated that Justice Masood, along with CJP Qazi Faez Isa, had recused from being a part of the nine-member bench hearing pleas against the military trials.

During the hearing, the AGP urged the court to conditionally allow the military trials of civilian suspects to be resumed.

Announcing its verdict, the Supreme Court said that the trials of 103 civilians would continue. Observing that the military courts would not issue a final verdict against the suspects, the court maintained that the final ruling would be conditional upon the Supreme Court’s orders.

Earlier, Justice Sardar Tariq Masood refused to recuse himself from hearing the intra-court appeals filed against the SC’s decision after former chief justice of Pakistan (CJP) Jawad S. Khawaja, the petitioner, objected to his inclusion in the bench, saying it was ex-CJP Khawaja’s own decision in which he had said that it was up to a judge whether to detach himself from the bench or not. “I am not detaching myself from the bench. And I am hearing the case,” he said.

However, Barrister Aitzaz Ahsan, counsel for a petitioner, prayed to the court to first listen to the arguments in favour of detachment of the judge from the bench.

Speaking on the occasion, Attorney General of Pakistan (AGP) Mansoor Usman Awan said that these were the appellants who were first listened to. “Therefore, the court is requested to listen to our arguments first,” he added.

As the proceedings began, Justice Masood suggested to the counsels to read a previous verdict by former Justice Jawwad S Khawaja, adding that it was up to the judge to remain a part of the bench or recuse themselves.

Advocate Latif Khosa, the counsel for Aitzaz Ahsan, who was one of the petitioners against the military trials, objected to the formation of the bench, at which Justice Masood asked him whether he had been issued a notice as a respondent in the case.

“When the respondents will be notified, then we will see your objection,” the judge remarked.

Khosa emphasised he objected as the judge was currently presiding over the case.

Advocate Salman Akram Raja then asserted that the Supreme Court could not “suspend the verdict nullifying the military trials without listening” to counsels in the original pleas.

Khosa further said that Justice Masood had already voiced his opinion on the case in a previous note, following which the judge reiterated that he would not recuse himself from hearing the appeals.

Here, AGP Awan questioned how the objections could be entertained when the notices had not been issued on the appeals yet.

Aitzaz Ahsan then came to the rostrum and urged the court to first decide on the objections raised on Justice Masood’s inclusion, at which the judge once again stated he was not recusing himself.

Justice Mazhar then told the Shuhada Forum lawyer that he would have to edit the appeal after a detailed order was issued.

When Justice Masood directed the AGP to begin presenting his arguments, the latter expressed he would like to offer defence ministry counsel Khawaja Haris the chance to do so first. Haris then came to the rostrum and argued that the apex court’s Oct 23 verdict did not mention according to which articles of the Constitution, provisions of the Army Act were declared unconstitutional.

He cited a previous case of retired Brig FB Ali, wherein he said the Army Act’s sections were upheld, adding a 17-member full court had also declared the judgement as correct when hearing a case on the 21st Amendment.

The defence ministry counsel added that the Supreme Court had previously ruled that if the crime pertained to the military, then the trial could be held in a military court.

At this point, Justice Mazhar asked the lawyer about his opinion on a fair trial being held and asked how he would ensure that a transparent trial was held in the military courts.

Justice Masood then noted that a detailed verdict on the judgment nullifying military trials had not been issued yet, asking if the court should decide the matter without reviewing that.

Here, Justice Saadat also asked, “Khawaja Haris Sahib, why not wait for the detailed verdict?”

To this, the lawyer said his request would then be that the apex court allows to resume the military trials of those currently in the military’s custody.

Khosa voiced his objection to a stay order on the court’s Oct 23 verdict, saying that the judges who made that decision were also Supreme Court judges.

Justice Masood asked rhetorically “why was this appellate court made?” and noted that the provisions about civilians had been nullified.

Later, issuing notices to the parties to the case, the SC adjourned the case’s hearing until the third week of January.

Reporter: Amanat Gishkori