EXCLUSIVE: SC Likely To Take Up Trial Of Civilians In Military Courts, Delay In Election Cases Soon

Father files petition in top court claiming the process of military trial for his civilian son is being resumed without first informing the top court

EXCLUSIVE: SC Likely To Take Up Trial Of Civilians In Military Courts, Delay In Election Cases Soon

The Supreme Court has hinted that it will hear two critical cases, including petitions challenging the trial of civilians in military courts and delays in holding general elections. The top court is expected to affix these cases for hearing in the coming week. 

The suggestion comes as concerns have been formally expressed at military trials of civilians could have resumed.

This development is significant given that immediately after Qazi Faez Isa took oath as the chief justice of Pakistan in September, serious concerns were raised by the Pakistan Tehreek-e-Insaf (PTI) regarding delays in fixing these cases for hearing. PTI is one of the petitioners who have challenged the trial of civilians in military courts. 
The other pertinent petitioner challenging military courts is former chief justice Jawad S Khwaja. 

In the other case, the Supreme Court Bar Association, the PTI, and other petitioners, have also approached the top court requesting it to direct the Election Commission of Pakistan (ECP) to hold general elections within 90 days.  

Chief Justice of Pakistan (CJP) Qazi Faez Isa on Thursday hinted that the Supreme Court may take up petitions against the delay in general elections and those challenging the trial of civilians in military courts soon.

The hint was given as CJP Isa heard a case about employees of the Pak Arab Refinery. During the case, legal counsels for the petitioners asked the bench, headed by the chief justice, to adjourn the hearing for 15 days. At this, the chief justice passed a remark suggesting that they may not be able to grant that relief given that he foresaw a busy period ahead, hinting that the general elections and trial of civilians in military court cases are to be fixed soon. 

"Difficult cases are about to come in the Supreme Court, and it will be tough to schedule other cases [during this period],” the chief justice remarked. He further remarked that the only opportunity to fix the next hearing of employees’ case would come after two months.

It is pertinent to note that this would be the first hearing for petitions that challenged the delay in general elections.

On the other hand, petitions challenging the military trial of civilians, especially those involved in vandalising army installations and other critical state infrastructure on May 9, had been briefly argued before a six-judge larger bench headed by former chief justice Umar Ata Bandial. The other members of the bench included Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Ayesha Malik and Justice Mazahir Ali Naqvi.

It would be interesting to see what would be the composition of the bench which is formed to hear petitions against military courts as Chief Justice Isa, in consultation with Justice Sardar Tariq Masood and Justice Ijazul Ahsan, would form the bench in accordance with the Supreme Court Practice and Procedure Act 2023. Any decision on the three-member committee of judges could be by majority. If Chief Justice Isa and Justice Sardar Tariq Masood give an opinion on who should head the bench hearing petitions against military courts, even if their decision is to appoint Justice Ijazul Ahsan as the presiding judge, then their opinion shall prevail. In that eventuality Justice Ahsan would be left with no other option but to hear these petitions and it could prove to be a test case for him given that he has remained part of those benches which gave relief to the PTI.

It is worth mentioning here that Chief Justice Isa has previously given his opinion on establishing military courts in the 21st Amendment case.

Stay sought

Meanwhile, petitioner Junaid Razzaq has moved a motion against military courts in the top court. He has submitted a miscellaneous application to the Supreme Court, requesting the top court to grant a stay on the military trial of his son Arzam Junaid after he claimed that it has come to his attention that the relevant department has resumed activities that will soon see military trials resume.

Razzaq further requested the top court to issue directives for the relevant authorities to produce his son before the top court. He requested the top court to direct the Inspector General of the Punjab Police to provide protection and security to the petitioner and his family.

Through the application, Razzaq informed the top court that even as his original application against the military trial of civilians remains pending before the top court, the attorney general for Pakistan had assured that no civilian will be tried before a military court without first informing the top court.
In this regard, Razzaq pointed to an order issued by the Supreme Court on August 3 which had noted the assurance provided by the attorney general, on instructions from the federal government and the military authorities, that no trial of civilians will commence before military courts without first informing this to top court. 

"Furthermore, this honourable court has also clearly ordered the mechanism by which such information must be conveyed to the court, i.e. through a statement made at the Bar on a date of hearing fixed in these petitions. This honourable court has also made it clear that upon receipt of such information, the parties shall be heard, and the court shall pass an order that it deems appropriate at such time," Razzaq's application stated.

"Contrary to the commitments made before this Honourable Court, and in violation of the above orders of this Honourable Court, the petitioner/applicant has come to know that trials of civilians before military courts have commenced. The petitioner has come to know of this because, in his capacity as an advocate, he is representing one of the civilians facing a trial before military authorities and, therefore, is aware that general courts-martial have been convened for this purpose and the lawyers of the various detainees have been contacted for this purpose.” 

Razzaq argued that his son, Arzam Junaid, is currently detained by the military authorities and is due to be tried by military courts. 

Junaid was arrested on May 15 and was transferred to the custody of the Army's Commanding Officer in Lahore on May 25. 

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain