Conflict in apex court unresolved

ByNabeel Zafar

Works in the private sector


July 19, 2023

Apex Court Unresolved

Nabeel Zafar describes a
gradually worsening situation

Apex Court Unresolved – It is not surprising that amidst a badly divided and polarised Pakistani polity any segment of the country could hardly eschew getting sucked in but the judiciary was the one institution that was widely expected to stay out of the fray but that was not to be. Not only that the judiciary is experiencing a bitter conflict amongst its fraternity but that conflict is now threatening its very existence as a rational, cohesive body that can keep its balance despite the growing societal disquiet. The latest developments in this context are ominous enough to indicate that something incredible may take place that may seriously harm the polity further. This bitter reality came to fore again during the hearing of the case pertaining to the crucial matter of trying civilians in military courts particularly the ones found involved in the mayhem caused in the beginning of last month. The nature of such offences has compelled the military establishment to insist for trying the accused in military courts. Keeping in view the complexity of the current situation it was quite obvious that this intention was going to be challenged in the Supreme Court (SC) and it was.

Though the matter was accordingly challenged but more intriguing and controversial was the manner of it whereby a former SC chief justice flanked by so-called independent-minded political operatives sought an audience with the incumbent Chief Justice and lodged the petition. This gesture unleashed a plethora of critical comments with social media having a field day distorting the whole issue. This development was termed unprecedented though there is no bar on a former chief justice of the SC to lodge a petition neither it is unusual for the petitioners to physically call on members of apex judiciary, though this instance was first of its kind in Pakistani judicial history, but the complexity and timing of this action aroused tremendous suspicions and it looked apparent that some counter measure was at hand. The intensity of the division was palpable that became all the more acute when the appointment of Justice Qazi Faez Isa as the incoming CJ was announced two months before retirement of the incumbent CJ, a rather unusual occurrence but not unexpected in wake of the prevailing atmosphere in the apex court.
An so it happened that after a 9-member hearing bench was put in place by the CJ, it was objected upon by the nominated CJ Qazi Faez Isa objected to the matter by raising an objection on the very nature of the constitution of the bench on the grounds that it was not legally formed due to the pendency of a petition concerning the Supreme Court (Practices and Procedures) Act that effectively limits the powers of the chief justice to constitute benches. Justice Isa very conspicuously stood up in the court and remained standing despite all fellow judges sitting down indicating his strong dissent. He then went about a narration that was partly personal and partly procedural making it abundantly clear that he will not accept the authority of the CJ to constitute benches. He was supported in his stance by Justice Tariq Masood who was reportedly angry about the matter. Justice Isa insisted that he was not recusing from the case but excusing himself from participating in an exercise that he considered improper and against regulations.

It proved not the end of the matter as the CJ quickly reconstituted the bench after excluding Justices Isa and Tariq Masood though no other judge, petitioner or defendant objected to the new bench despite being offered a chance to do so indicating that hearings may proceed unhindered. There is no denying the fact that this case is of grave importance as such matters rarely comes to be adjudicated. It is clear that the matter concerns the fate of dozens, if not hundreds, of citizens who face court martial over their alleged involvement in the vandalism of several military properties during riots that broke out following PTI chairman Imran Khan’s arrest last month. It is interesting to observe that the petitioners have not asked for any relief but just asking that the accused may be tried in ordinary courts instead of their cases dealt with in military courts. The arguments given in this respect appear almost repetitive emphasising that the trial of civilians by military courts violates the constitutional rights guaranteed to the citizens of Pakistan and that, in any case, civilians should not be tried under the Army Act when ordinary courts are open and functioning. Even more interesting may be the counter-arguments of the government that may be aimed at the demands of the military establishment that all suspects be practically court-martialed. It is pointed out by legal experts that the lines between the jurisdictions of civil and military courts have long been blurred and the time has come that they be reexamined by the superior judiciary in their correct perspective. The Weekender


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