What is the moral authority of those who have stick? CJP

ISLAMABAD: Chief Justice Umar Atta Bandial has expressed concern over the lack of enforcement of court decisions, emphasising the need to address the issue of non-compliance.

Heading a six-member Supreme Court bench that heard identical petitions challenging the trial of civilians in military courts, Chief Justice Bandial asserting the independence of the judiciary responded to the objections raised by the government, stating that the composition of the bench should not be determined at the whims of the government.

He also talked about the government’s consistent emphasis on bench formation, cautioning against disrespectful remarks towards judges. The chief justice said that the top court has shown extreme restraint in punishing those who fail to implement its decisions regarding polls in Punjab, calling for a reconsideration of the existing approach.

Addressing the Attorney General, Chief Justice Bandial acknowledged his legal expertise and character, reminding him of the court’s moral authority to speak the truth.

During the hearing, the chief justice acknowledged the earlier setback faced by the court and expressed confidence in overcoming it. He stressed the importance of granting the petitioners’ lawyers an opportunity to present their arguments first.

The question regarding the applicability of Section 2-D of the Army Act was raised by Justice Ayesha Malik, to which the petitioner’s lawyer, Salman Akram Raja, drew comparisons with military courts in Britain and America.

Lawyer Raja responded to Justice Muneeb Akhtar’s query about filing a constitutional petition in the high court against military courts, explaining that the high court lacks the authority to determine the status of military courts.

He emphasized that his client’s case pertained to Articles 9 and 10, which establish a set of rights and empowered judges under Article 175. In response, the chief justice sought clarification on the relevance of these articles to the case, emphasizing the protection of civilians’ fundamental rights.

Justice Ayesha Malik further questioned the petitioner’s lawyer, highlighting if he challenges the Army Act rather than opposing the trial of civilians in military courts. Justice Yahya Afridi, discussing the absence of a constitutional definition of the judiciary, underscored the separation of powers enshrined in the Constitution. The chief justice questioned the necessity of bringing military officers’ trials into a case unrelated to them, requesting clarity from the petitioner’s lawyer.

The chief justice reminded Salman Akram Raja that the case pertained to civilians’ fundamental rights, rather than the trial of military officers. Lawyer Raja clarified that no one other than the judiciary can exercise judicial powers under Article 175/3, citing a previous Supreme Court decision.

The chief justice, seeking clarity, inquired whether civilians could be deprived of their basic rights and whether decisions made by military courts were subject to appeal within the country’s courts.

Chief Justice Bandial emphasized that military courts should not be equated with district courts, noting that security is provided during court trials in Pakistan. He highlighted that previous decisions related to military courts primarily concerned the trial of terrorists, urging the petitioner’s lawyer to identify any flaws in these precedents.

Lawyer Raja talked about civilians serving the armed forces and civilian individuals, stating that the former were subject to military discipline. He argued that civilians unaffiliated with the forces should be tried by judges appointed under Article 175/3.

The chief justice acknowledged the importance of widening the scope of appeal in military courts, cautioning against directly emulating the examples set by Australia or Germany. Lawyer Raja reiterated that the trial of civilians in military courts should be challenged solely on the grounds of civilians’ rights, confirming that he was not challenging the trial of army officials.

The chief justice mentioned lawyer Faisal Siddiqui’s position on the matter who earlier said that civilians could be tried in military courts under specific circumstances, and expressed an interest in examining the legal references supporting this perspective.

On June 23, a nine-member bench formed to take up the petitions challenging the trial of civilians in military courts was dissolved after nominated chief justice Justice Qazi Faiz Isa and Justice Tariq chose to withdraw from hearing the petitions. Justice Isa justified his decision, arguing that the court should not proceed until the Supreme Court Procedure Bill was resolved, questioning the legitimacy of the bench.

Earlier on Monday, a seven-member larger bench led by the chief justice was dissolved soon after it, commenced proceedings on petitions challenging the trial of civilians in military courts after Justice Mansoor Ali Shah recused himself from the bench the government raised objections to his inclusion in the bench.


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