ISLAMABAD: The difference of opinions continued to emerge among judges hearing challenges to the military trial of civilians as another member has urged the chief justice to constitute the full court.

Chief Justice of Pakistan (CJP) Umar Ata Bandial had constituted a nine-member bench to hear the set of petitions against prosecuting civilians in military courts. The bench has been reduced to six members after the recusal of three judges.

Now, one of the six members, Justice Yahya Afridi, has highlighted the need for a full court — comprising all Supreme Court judges — to hear the case.

On Tuesday, Justice Afridi said the move was necessary to maintain harmony within the court.

In his one-page note, the judge said a full court bench will ensure the integrity of the institution and the public’s trust in the court was upheld.

Says all judges should hear pleas against military trial of civilians to ‘maintain harmony within SC’

Justice Yahya issued the note with the court’s June 23 order, when the attorney general for Pakistan (AGP) disclosed for the first time that 102 individuals were in the custody of military authorities.

The note has come to the fore a day after Justice Syed Mansoor Ali Shah recused himself while highlighting the need for a full court to hear the case.

As a first step, Justice Afridi observed in his note, the appropriate measure would be that the full court bench of this apex court should be constituted to hear the present petitions.

He said in the absence of a full court, any judgement issued by the present bench might diminish “the deference the decision requires and deserves”.

“The entire edifice of a credible justice system is based on public trust. In the current politically charged scenario, where the term of the present government is drawing close to its end and the nation is gearing up for fresh elections, the political murmurings against the composition of the present bench could be palatable,” observed Justice Afridi.

He added the most serious issue which “cannot be disregarded” was that objections have been raised by the members against the bench’s constitution.

“Thus, the matter of the present composition of the bench warrants urgent attention and reconsideration by the Hon’ble Chief Justice of Pakistan, lest it may dampen public trust in the justice system,” he said while also referring to the objections raised by Justice Qazi Faez Isa.

Although he didn’t agree with or endorse Justice Isa’s note, he said that “even if one may not agree with the law points raised in the objections” the propriety demanded appropriate measures for the “maintenance of harmony” within the court, the “integrity of the institution” and “public trust in the court”.

“As a first step, the appropriate measure, in my earnest view, would be that a full court bench of this court should be constituted to hear the present petitions,” he concluded while urging the chief justice to reconstitute the bench.

Earlier on Monday, Justice Shah recused himself from the bench after AGP Mansoor Usman Awan objected to his presence.

In his note following the recusal, he said the petitioner, ex-chief justice Jawwad S. Khawaja, was his relative, but the latter had filed the petition in the public interest, not involving any interest of his own.

Yet he acceded to the government’s request and withdrew from the bench only because the common man might not fully understand the difference between petitions filed in ‘public interest’ and ‘personal interest’.

At the same time, he underlined that judges should not readily accede to recusal requests and decide the matter after properly weighing the grounds for such requests.

He said if such a request was based on some reasonable ground that may genuinely raise doubt in the mind of a common person about the judge’s impartiality, the safest course for the judge was to recuse themselves “in the larger interest of upholding public trust in the integrity and impartiality of the court”.

The bench constituted on June 21 was fractured during its first hearing when CJP-designate Isa said he did not consider the bench ‘a proper court’. “I am not recusing (withdrawing) myself but I will not sit either and therefore [I am] rising.” Justice Sardar Tariq Masood also endorsed Justice Isa’s point of view and didn’t take any further part in the bench’s proceedings.

Published in Dawn, June 28th, 2023

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