ISLAMABAD: A former chief justice on Tuesday requested the Supreme Court for an early hearing of appeals against the military trial of civilians.

The ex-CJP, Justice Jawwad S. Khawaja, moved an application through his counsel, Advocate Khwaja Ahmad Hosain, on Tuesday, pleading that if the appeal is dismissed, the “civilians will have unjustifiably been subjected to military custody for months”.

The applicant sought a hearing, preferably by March 25, since the continued presence of civilians in military custody was “beyond compensation”.

Mr Khawaja was one of the applicants who moved the court last year against the military trials of civilians arrested in the wake of violent protests on May 9.

It led to a unanimous verdict by a five-member Supreme Court bench in October 2023, which declared the trial of 103 civilians against the Constitution.

The decision — challenged by the federal government, defence ministry, Punjab, Khyber Pakh­tunkhwa (KP) and Balochistan governments through Intra-Cou­rt Appeals (ICA) — was suspended by a six-judge bench on Dec 13, 2023, with a majority of 5-1.

At the last hearing on Jan 29, Justice Sardar Tariq Masood, who has since retired, referred the ICAs to the three-judge committee to fix them before a larger bench.

The committee, comprising the chief justice and two senior jud­ges, is tasked with forming bench­­es under the Supreme Court (Pr­­ac­tice and Procedure) Act, 2023.

While referring the matter to the committee, ex-justice Masood clarified that the Oct 23 order will remain suspended until the bench is formed.

Nine-judge bench

In his application, the former CJP said courts were the “guardians of fundamental rights” guaranteed under the Constitution.

The civilians had been in military custody for several months, and it is public knowledge that their trials have been completed, and only judgement remains to be announced.

“Therefore to protect and preserve the right to liberty, the titled appeal and related appeals should be listed at the earliest,” the application pleaded.

Mr Khawaja said the case shou­­ld be heard by a larger bench and sought a nine-judge bench to continue proceedings on the ICAs.

“There is no order in the field by any bench of the Supreme Cou­rt stopping the government from releasing these individuals or from handing them over to the civi­lian law enforcement authorities.”

Mr Khawaja pleaded that 103 individuals were being held in “illegal custody” by the military authorities and with their fundamental rights denied.

Given the regrettable and inaccurate interpretation that appears to have been adopted by the federal government, the present appeal and related appeals should be listed as soon as possible, as per the application pleaded.

While citing Article 9 of the Constitution, which stated that no individual “shall be deprived of life or liberty”, the petitioner said the fundamental right to liberty of 103 individuals was at stake.

Published in Dawn, March 20th, 2024

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