Islamabad: Supreme Court of Pakistan (SCP) Chief Justice formed a new six-member bench headed by him Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Ayesha Malik, and Justice Mazahar Ali Naqvi are the other members.
A six-member bench headed by CJP Umar Ata Bandial resumed the hearing.
The Supreme Court’s bench hearing pleas against civilians’ trials in military courts dissolved for the second time on its third hearing after the government raised objections over Justice Mansoor Ali Shah’s inclusion to the bench.
During the third hearing of the petitions today, Attorney General for Pakistan (AGP) Mansoor Usman Awan took to the rostrum and said: “Justice Mansoor Ali Shah had asked earlier if we objected to his presence in the bench. At the time, I had said there was no objection to him.”
Justice Shah had previously informed the court that he was a relative of petitioner Khawaja and that if anyone had concerns about his inclusion to the bench, he would recuse himself.
At this, Attorney General for Pakistan Mansoor Awan said he had no reservations against his inclusion in the bench.
However, today, the AGP submitted to the court that he had “been instructed [by the government] that Justice Mansoor Ali Shah should not be a part of the bench.”
Chief Justice for Pakistan (CJP) Umar Ata Bandial took issue with the request and remarked: “The bench will not be made by your will.”
He then demanded to know on what basis the federal government has objected to Justice Mansoor.
The AGP responded that the objection had been raised due to a conflict of interest.
After this, the SC judge recused himself.
The surprise move of the government angered Chief Justice of Pakistan (CJP) Umar Ata Bandial who admonished the AGP and adjourned the hearing briefly, saying they will assemble again shortly with a new bench.
Earlier, during the first hearing last week, Justice Shah informed the court that he was a relative of a petitioner and that if anyone had concerns about his inclusion in the bench, he would recuse himself.
At that time, AGP Awan denied having any concerns on the matter.
Initially, the petitions were fixed before a nine-member bench, but Justice Qazi Faez Isa and Justice Tariq Masood objected to it. Later, the bench was dissolved and a new bench was formed to hear the case.
Who are the petitioners?
Enraged workers of Pakistan Tehreek-e-Insaf (PTI) resorted to violence in reaction to their party chief’s arrest on May 9 after which the government decided to try the vandals who attacked army installations in military courts.
A number of petitions were filed in the Supreme requesting the apex court to declare the military trials “unconstitutional”.
The pleas were filed separately by PTI Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and five civil society members, including Piler Executive Director Karamat Ali.
CJP reprimands AGP
Taking issue with the AGP’s request today, CJP Bandial remarked: “The bench will not be formed at your will.”
He then demanded to know on what basis the federal government has objected to Justice Mansoor.
The AGP responded that the objection had been raised due to a conflict of interest.
Irked with the AGP, the CJP asked: “Are you objecting to Justice Mansoor on bias or conflict of interest?”
The attorney general reiterated that the objection was based on a conflict of interest.
“You are a top-class lawyer and the court has confidence in you,” the CJP said.
However, he pointed out that there was a link in the continuum of objections to judges.
“Earlier, the government raised the issue of bench ratio,” CJP Bandial remarked.
“No one doubts the competence of the judge against whom the objection is being raised,” the CJP responded, adding that this was not the first time the government had raised such objections.
“No one objected to the 90-day clause in the Punjab elections case; objections were raised only against the bench,” he said.
“In the election case, instead of the constitutional matter of 90 days, an objection was raised on proportionality,” he added.
He continued that the apex court had avoided taking strict action after the government failed to implement its election order.
“The Supreme Court is not using a stick, but in what capacity are others using the stick?” he asked.
“We avoided contempt of court proceedings in the election case. Now, we think it’s time to take a step back.” the CJP observed, adding that the “moral responsibility of right and truth belongs to this court”.
CJP defends Justice Shah
“Former chief justice Khawaja is a dervish person; will Justice Mansoor benefit him?” he asked, asking, “Does the government want to make the bench controversial again?”
“Should [we] ask the prime minister why an objection was raised on the basis of a relationship?” he asked.
He further defended Justice Shah saying the latter was not the sort of person to let his relationship influence the decision.
“Do not tarnish the Supreme Court, do not ridicule it,” he thundered, asking what message the government was trying to convey?
‘Dark day in judicial history’
Terming the development a “dark day in judicial history”, Advocate Latif Khosa, who is representing petitioner Atizaz Ahsan, said: “[They] don’t let the courts make decisions, [yet they] mock its decisions.”
Furthermore, Advocate Salman Akram Raja, who is representing Junaid Razzaq and was expected to present his arguments today, said: “It is a case of fundamental rights, there should have been no objections against the bench.”
However, he added that Justice Shah should “review his decision”.
At this, Justice Shah remarked: “I know my conduct well.”
He added that he would “never be a part of the bench again”, if anyone could “raise a finger” against him.
Moreover, the lawyer of the petitioner of Hamid Khan said, “There is no point of objection on this occasion.”
Lawyer Faisal Siddiqui added, “Justice M Arkani had once shared a joke with his students. He said that if you start losing the case, object to the bench.
“This is what the federal government is doing now.”
After the hearing reconvened with a six-member bench following the dissolution of the seven-member bench, the top judge asked the PTI lawyer to give arguments later.
“[We] are recovering from the setback that took place this morning. Instead of a constitutional debate, other tactics are being used,” CJP Bandial said.
Lawyer representing petitioner Junaid Razzaq, Barrister Salman Akram Raja, started his arguments but the CJP Bandial asked him to amend his plea.
He objected to the arguments over citizens’ rights when the trial had not even started.
‘Keep the arguments simple’
The CJP warned the lawyer against involving in a “big controversy” and asked him to “keep the arguments simple”.
“This is a fundamental rights case. Army Act’s Section D2 cannot deprive the civilians of their basic rights […] surpassing the Constitution,” CJP Bandial remarked.
The top judge said that the court wanted to view the several verdicts about the military courts, while asking that the word “court martial” hadn’t been used elsewhere than Army Act.
Meanwhile, Justice Akhtar stated that Article 199 does not apply to court martial.
At this, Barrister Raja informed the court that the article applied to the sentences awarded under the Army Act, while Article 2D of the Army Act does not apply to military officials and civilians on the basis of the allegation.
While objecting to Raja’s arguments, the top judge said that it was “not right to say that a military court is equal to a session judge’s court”.
