Justice Ahsan objects to benches hearing military trial, Justice Naqvi appeals

ISLAMABAD: Senior Supreme Court judge, Justice Ijazul Ahsan on Monday raised objections on the formation of two benches – one hearing the intra-court appeals against the judgement declaring the trials of civilians in military courts as unconstitutional and the other Justice Mazahar Ali Akbar Naqvi’s plea against the Supreme Judicial Council (SJC) proceedings.

A six-judge larger bench of the Supreme Court headed by Justice Sardar Tariq Masood will hear the appeals against its earlier verdict – wherein it had unanimously declared the trial of civilians allegedly involved in the May 9 riots in military courts as unconstitutional – on Dec 15.

According to the SC roster issued on Saturday, the bench will also include Justices Aminuddin Khan, Muhammad Ali Mazhar, Hasan Azhar Rizvi, Musarrat Hilali and Irfan Saadat Khan.

“A meeting of the Committee (“the Committee”) constituted under Section 2 of the Supreme Court (Practice and Procedure) Act 2023 (the “Act”) was held in the Chambers of the Honourable Chief Justice at 4:00 PM on Thursday 7th December 2023. I attended the meeting being a member of the Committee,” Justice Ahsan wrote in a letter to the secretary of the judges committee on Monday.

He said that it was agreed that since the judgement in the matter of the trial of civilians by military courts had been rendered by a five-member bench of the court, a seven-member bench would be constituted to hear the appeals.

“I categorically and in clear terms stated that in order to dispel any impression of pick and choose, all Judges of this Court in the order of seniority be included in the appellate Bench,” he added.

Justice Ahsan said that the chief justice had agreed to his point, but said that he would ask the judges and if any of them did not want to sit on the bench, the next available judge will be included.

“I waited all day on Friday for any information regarding the two Benches. At least three phone calls were made to you, but my office was informed that the file with your note had been sent to the Honourable Chief Justice of Pakistan. The last call was made at 6:30 PM when your office stated that you had left for the day,” he said in the letter.

“Neither the minutes of the 4th meeting nor those of the 5th meeting were sent to me on Friday or Saturday. Neither of the minutes have been seen or signed by me, yet these have been uploaded on the website of the Supreme Court of Pakistan.

He said that it was his right and duty to ensure that the minutes reflect accurately what was discussed in the meeting, what were the points of view of the members of the committee and if there was any unanimity or a difference of opinion.

“The minutes of the 5th Meeting prepared and uploaded by you most certainly fail to do so,” he added in his letter to the secretary.

The senior jurist said that he has the greatest respect for each and every honourable judge of the court, but as a matter of principle and in the interest of transparency and to maintain the dignity and honour of the court, the rule of seniority was agreed to be followed to hear these matters.

“I have therefore written this note to set the record straight. In view of the fact that you have upload the minutes of the meeting without even showing them to me, let alone getting my signatures, I expect that this note will also be uploaded on the website of the Supreme Court of Pakistan immediately,” he concluded.

On Oct 23, a five-judge bench comprising Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahir Naqvi, and Justice Ayesha Malik ordered that 103 accused in cases relating to the violence on May 9 and 10 should be tried under ordinary criminal laws.

Their verdict came on the petitions filed by former chief justice Jawwad S Khawaja, senior lawyer Aitzaz Ahsan and others, questioning the legitimacy of trying civilians in military courts.

The intra-court appeals against that verdict had been filed by the caretaker federal government and the interim set-ups in the provinces of Punjab, Balochistan, and Khyber-Pakhtunkhwa. The caretaker Sindh government refuted reports that it had challenged the judgement.

The defence ministry also filed an appeal before the SC against its verdict, requesting the top court to suspend the judgement’s operation during the pendency of its plea.

Meanwhile, in his objection against the bench to hear Justice Naqvi’s petition, Justice Ahsan requested a fresh court roster to be issued as he deemed it in violation of Section 2 of the Supreme Court (Practice and Procedure) Act 2023.

He urged the court to recall the original court roster and issue what was agreed by the committee during its meeting on October 26, 2023 which was required to be continued till December 16, 2023.

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