• Three senior-most judges of apex court to sit on same bench
• PM’s aide Irfan Qadir says ex-CJP shouldn’t have approached top court as a litigant

ISLAMABAD: A nine-judge Supreme Court bench headed by Chief Justice of Pakistan (CJP) Umar Ata Bandial will take up on Thursday (today) a set of four petitions challenging the trial of civilians in military courts.

The larger bench will include Justice Qazi Faez Isa, Justice Sardar Tariq Mas­o­­od, Justice Ijazul Ahsan, Justice Syed Mansoor Ali Shah, Justice Munib Akhtar, Justice Yayha Afridi, Justice Sayyed Ma­­zahar Ali Akbar Naqvi, and Justice Ayesha Malik.

These petitions were filed by former CJP Jawwad S. Khawaja, Aitzaz Ahsan, Karamat Ali, and PTI Chairman Imran Khan. Mr Khawaja, who filed the petition through his counsel Advocate Khawaja Ahmad Hosain on Tuesday, requested the Supreme Court to declare the trial of civilians by the military courts unconstitutional.

The former CJP pleaded that Section 2(1)(d)(i) and (ii) of the Pakistan Army Act were inconsistent with the fundamental rights conferred by the Constitution and therefore void and should be struck down.

As an interim measure, all proceedings against civilians based on the sections should be suspended or, in the alternative, any military court should be restrained from passing a final order in any case against civilians based on the sections, the petition had stated.

Before this petition, five members of the civil society from different cities thro­ugh their counsel Faisal Siddiqi sought as illegal the trial of civilians in the military courts in connection with May 9 violence.

Likewise, Aitzaz Ahsan, who has also served as a former law minister and also spearheaded the 2007 lawyers movement, explained that the primary purpose of his petition was to ensure that none of the thousands of civilians who have admittedly been arrested for allegedly having partaken in the May 9 violence and being nominated for trial before the military courts be tried by the military courts.

The petitioner said he did not seek to scuttle any trial of any civilian before any lawfully established court of criminal jurisdiction.

In his petition, PTI Chairman Imran Khan sought a declaration against the arrests, investigation, and trial of civilians in peacetime under the Pakistan Army Act (PAA) 1952 as well as the Official Secrets Act 1923.

‘Doesn’t behove ex-CJ’

Separately, Prime Minister’s Special Adviser on Accountability Irfan Qadir took strong exception to ex-CJ Khawaja’s challenge to the trial of civilians in the military courts, regretting it was unprecedented that a former chief justice coming to the top court as a litigant where he already served as the top judge.

“Never in the judicial history of Pakistan, any CJP made himself a party especially in a case when there seemed to be a divide in the Supreme Court and when the military installations had been attacked with impunity,” Mr Qadir said while talking to the media at his office on the premises of the Prime Minister Secretariat on the Constitution Avenue.

To substantiate his point of view, Mr Qadir cited the example of Article VI of the Code of Conduct for the superior court judges which clearly states: “A judge should endeavour to avoid, as far as possible, being involved, either on his own behalf or on behalf of others, in litigation or in matters which are liable to lead to litigation such as industry, trade or speculative transactions.”

Article VI also stated that the judge will not employ the influence of his position to gain undue advantage, whether immediate or future, which is a grave fault, he said.

When reminded that Mr Khawaja had approached the apex court under Article 184(3) of the Constitution for a public interest issue, he retorted that civilians had been tried under PAA since the law had existed for the last 70 years. He questioned why the vires of the law had been challenged after a lapse of so many years.

“It does not behove of a top judge to become a litigant before the apex court in such a manner,” Mr Qadir regretted. He said it would be “wrong to suggest that judges junior to him or who were elevated on his recommendation would not be influenced with his presence as a litigant in the court”.

Published in Dawn, June 22nd, 2023