Islamabad: 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 not available until September.
The top judge recalled that larger benches were formed twice to hear pleas in the case but they couldn’t conduct complete proceedings. “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.
At the outset of the proceeding, 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 ill-treated.
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 ill-treated, 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.
