SC rejects government’s plea for full court


Supreme Court

ISLAMABAD: Chief Justice of Pakistan (CJP) Umar Ata Bandial Tuesday turned down the government’s request to establish a full court to hear the multiple petitions challenging the trial of civilians in military courts, terming the demand “impossible”.

The CJP’s remarks came during a hearing of the petitions in the apex court by a six-member bench that also included Justice Ijazul Ahsan, Justice Yahya Afridi, Justice Munib Akhtar, Justice Mazahir Ali Akbar Naqvi, and Justice Ayesha A Malik.

“Judges are not available at this time. It is not possible to form a full court,” CJP Bandial told Attorney General for Pakistan (AGP) Mansoor Usman Awan.

The CJP said: “When the bench was first formed, all the judges were consulted and the bench was formed based on the available judges.”

“It is impossible to make a full court at this time,” he said, adding that doing so is impossible on a technical basis.

“Three judges excused themselves from hearing the case; some judges are not in the country,” he said.

He further said that two more judges excused themselves on the first day of the hearing.

“We were surprised when the government came to the second hearing and objected to a judge.

“Justice Mansoor excused himself from hearing the case.” The CJP remarked that the bench had shrunk from nine to six.

“No judge has [any] personal interest in a case of public interest,” he remarked.

Supreme Court Bar Association (SCBA) President Abid Zuberi came to the rostrum. He said that he had submitted a detailed response and was representing the SCBA, adding that he would assist the court on five points.

“It will be good to have your opinion,” CJP Bandial said.

Zuberi pointed out that the apex court had decided in the Liaqat Hussain case that civilians could not be tried in military courts. He cited the judgement by ex-CJP Justice Ajmal Mian and said that only military personnel could be tried under army laws.

“The judgement stated that a constitutional amendment is needed to try civilians under the Army Act,” he contended.

“The main point is, how will the suspects be connected with the crime in question,” he said. The SCBA president said that there were previous verdicts in this regard, saying that the courts had ruled that suspects could only be tried if they were directly linked with the crime.

“You are saying that a suspects’ link with the crime is the first requirement of the trial,” CJP Bandial said. “According to you, civilians can be tried in military courts only after they are directly linked to the crime and after constitutional amendment,” he said.

However, Justice Ahsan then pointed out that the Liaqat Hussain case was tried without introducing a constitutional amendment. He also asked if a constitutional amendment was needed if it concerned the army’s internal matters.

“Can you summarise your position?” the CJP asked. He also asked what would happen if the suspect was proven to be linked to the crime.

“In the current situation, a trial is only possible through a constitutional amendment,” Zuberi replied. He pointed out that the Official Secrets Act was invoked against some suspects involved in May 9 violence but not against the others.

He further said that the extent of prosecution by military trials was also not known, adding that trials were conducted by the members of the executive and not the judiciary.

He said that while the 21st Amendment had allowed for the establishment of military courts, it had also allowed for a judicial review in the high courts and SC.

“Are you saying that police should first take the accused to regular courts and have them charged before taking them to military courts?” justice Afridi asked.

Zuberi said that according to the law, a person was not a criminal until they were charged with the crime.

At one point, CJP Bandial said that the ruling in the Liaqat Hussain case stated that military authorities could investigate but not conduct the trial of civilians.

Justice Ahsan then asked who would decide when the Army Act was applicable and when it was not. Zuberi replied saying that the police was responsible for investigating and would decide as he wrapped up his arguments.

AGP Awan then commenced his arguments, saying that petitioner’s counsels had talked about the 21st Amendment, the Liaqat Hussain and Brigadier F.B. Ali cases. He pointed out that a full court had decided the petitions against the 21st Amendment and called for doing the same in this case.

Awan the proceeded to read out the note penned by Justice Afridi wherein he urged CJP Bandial to constitute a full court.

“In his note, Justice Afridi asked for a full court to be constituted. The objections of the other members of the bench were also included in the note,” he said.

Justice Ayesha then asked AGP Awan to also read the June 26 verdict, pointing out that the federal government had objected to one of the members of the bench. “Can the government now request for a full court?” she asked.

Awan then called for constituting a full court consisting of judges who were available.

At this, Justice Ayesha asked, “Who will decided which judges are available? You are accepting the fact that the chief justice will decide the formation of the bench.”

Justice Akhtar then said that the current bench had heard the case at hand to a “large extent” and urged the AGP to continue with his arguments.

Subsequently, the government’s request for constituting a full court bench was rejected and the hearing was adjourned till tomorrow (Wednesday).

At the outset of the hearing, Supreme Court Bar Association (SCBA) President Abid Zuberi came to the rostrum. He said that he had submitted a detailed response and was representing the SCBA, adding that he would assist the court on five points.

“It will be good to have your opinion,” CJP Bandial said.

Zuberi pointed out that the apex court had decided in the Liaqat Hussain case that civilians could not be tried in military courts. He cited the judgement by ex-CJP Justice Ajmal Mian and said that only military personnel could be tried under army laws.

“The judgement stated that a constitutional amendment is needed to try civilians under the Army Act,” he contended.

“The main point is, how will the suspects be connected with the crime in question,” he said. The SCBA president said that there were previous verdicts in this regard, saying that the courts had ruled that suspects could only be tried if they were directly linked with the crime.

“You are saying that a suspects’ link with the crime is the first requirement of the trial,” CJP Bandial said. “According to you, civilians can be tried in military courts only after they are directly linked to the crime and after constitutional amendment,” he said.

However, Justice Ahsan then pointed out that the Liaqat Hussain case was tried without introducing a constitutional amendment. He also asked if a constitutional amendment was needed if it concerned the army’s internal matters.

“Can you summarise your position?” the CJP asked. He also asked what would happen if the suspect was proven to be linked to the crime.

“In the current situation, a trial is only possible through a constitutional amendment,” Zuberi replied. He pointed out that the Official Secrets Act was invoked against some suspects involved in May 9 violence but not against the others.

He further said that the extent of prosecution by military trials was also not known, adding that trials were conducted by the members of the executive and not the judiciary.

He said that while the 21st Amendment had allowed for the establishment of military courts, it had also allowed for a judicial review in the high courts and SC.

“Are you saying that police should first take the accused to regular courts and have them charged before taking them to military courts?” justice Afridi asked.

Zuberi said that according to the law, a person was not a criminal until they were charged with the crime.

At one point, CJP Bandial said that the ruling in the Liaqat Hussain case stated that military authorities could investigate but not conduct the trial of civilians.

Justice Ahsan then asked who would decide when the Army Act was applicable and when it was not. Zuberi replied saying that the police was responsible for investigating and would decide as he wrapped up his arguments.

AGP Awan then commenced his arguments, saying that petitioner’s counsels had talked about the 21st Amendment, the Liaqat Hussain and Brigadier F.B. Ali cases. He pointed out that a full court had decided the petitions against the 21st Amendment and called for doing the same in this case.

Awan the proceeded to read out the note penned by Justice Afridi wherein he urged CJP Bandial to constitute a full court.

“In his note, Justice Afridi asked for a full court to be constituted. The objections of the other members of the bench were also included in the note,” he said.

Justice Ayesha then asked AGP Awan to also read the June 26 verdict, pointing out that the federal government had objected to one of the members of the bench. “Can the government now request for a full court?” she asked.

Awan then called for constituting a full court consisting of judges who were available.

At this, Justice Ayesha asked, “Who will decided which judges are available? You are accepting the fact that the chief justice will decide the formation of the bench.”

Justice Akhtar then said that the current bench had heard the case at hand to a “large extent” and urged the AGP to continue with his arguments.

Subsequently, the government’s request for constituting a full court bench was rejected and the hearing was adjourned till tomorrow.

 

 

 

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