Legal questions

Published June 25, 2023

WHEN the Supreme Court decided to take up multiple petitions against the court martial of civilians, there had been much excitement over the inclusion of the senior puisne judge, Justice Qazi Faez Isa, in the nine-member bench originally formed to hear the matter.

It had been a long-running complaint of critics of the current chief justice that he had actively excluded Justice Isa from important benches. Therefore, after his ‘surprise’ nomination to the bench, many were looking forward to hearing Justice Isa’s thoughts on the matter; more so as the honourable justice had, just a day earlier, been confirmed as the next chief justice of Pakistan.

Instead, both Justice Isa and the next senior-most judge, Justice Tariq Masood, chose to abruptly disassociate themselves from the proceedings. Granted that they may have had their reasons not to sit on the bench, but it would seem that, in this case, they missed the forest for the trees.

The decision to court-martial civilians is no frivolous matter. It merits a detailed review under the laws of the land, preferably by as many of the best legal minds the country has in its service as possible. The incoming chief justice’s differences with the incumbent on various administrative matters of the court are well documented.

They need not have become a reason for two senior-most judges to sit this case out. The state has argued against any debate or discussion over the trials of civilians under military laws, even shutting down attempts to question the grave implications of this practice.

The petitioners were not wrong when they pleaded with Justice Isa to reconsider, arguing that they had already risked much to bring the matter to court. Considering that he has not recused himself, he should find a way to still weigh in on the matter.

Lastly, a word to some of our elected lawmakers, who lately seem inclined to see a conspiracy in everything the Supreme Court does. It was unbecoming of two cabinet ministers to launch into ugly tirades against the superior judiciary on the floor of the National Assembly simply for taking up the relevant petitions.

Perhaps they needed a reminder that all citizens of Pakistan enjoy the right to seek legal recourse whenever they feel their fundamental rights are being threatened. It is up to the judiciary to decide, based on its merits, which petition is to be heard and which is to be set aside.

There is little point, therefore, of fomenting controversy over whether or not the Supreme Court should hear this case. Instead, it would be best if both critics and proponents of military courts decide to test the strength of their arguments before the court.

This need not turn into another public dispute between the judiciary and legislature.

Published in Dawn, June 25th, 2023

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