Government contentions in Pakistan's military-courts case

The Express Tribune reports here on the pending intra-court appeal in the Supreme Court of Pakistan's military-courts case. The article summarizes the caretaker government's contentions. The case will now be heard by a six-judge bench, reviewing the October 23 decision of a five-judge bench. To date, the promised opinion of the five-judge bench has not been released. All there is is a brief, conclusory 4-1 order. One would have thought that the intra-court appeal would not proceed until the full opinion(s) of the first panel had been handed down. Excerpt from the Express Tribune's account:

It was pointed out in the appeal that the Supreme Court (Practice and Procedure) Act had been declared ultra vires the Constitution and had taken effect since April 21. It added that in view of the act having attained constitutional validity, the constitution of the bench was in contravention to the procedure prescribed under sections 2 and 3 of the law.

“Therefore, the judgement is liable to be set aside for having been rendered coram non judice [without jurisdiction] and thus a nullity in the eye of law,” it continued. It contended that the petitions were not maintainable before the SC in its original jurisdiction under Article 184(3).

The plea maintained that the trial of the accused persons – whether military personnel or otherwise – could not be challenged for being in violation of any of the fundamental rights, including those enshrined in articles 9, 10-A and 25 of the Constitution.

The appeal argued that the challenges raised in the petitions could have been adjudicated by the high courts in their original constitutional jurisdiction under Article 199.

It contended that the petitions fell outside the purview of “the contours that this court [SC] had determined for the exercise of its original jurisdiction”. The plea pointed out that offences under Section 2(1)(d)(ii) included those under the Official Secrets Act, which “related to works of defence or naval, military or air force affairs, which may be prejudicial safety, interest, defence, sovereignty and sanctity of Pakistan”.

“It is clear from the nature of these offences that despite being committed by person[s] who are not members of the armed forces, they are closely related to the proper discharge of duties of such members,” it added.

Dawn adds the following important reporting here:

[T]he constitution of the bench has also raised eyebrows, with senior counsel Faisal Siddiqui saying it’s contrary to the earlier court practice of making benches in odd number rather than in a perfect balance.

He told Dawn that he would definitely raise the issue when the ICAs will be taken up on Dec 13, wondering what will be the ratio of the court decision if it was divided in equal numbers — three judges in favour and three against it.

How Justice Sardar Tariq Masood could head the bench, Advocate Siddiqui wondered, when he had already expressed his opinion in a note he issued on July 4 during the first round of litigation.

Justice Tariq was initially part of the earlier nine-judge SC bench which heard the challenges to the military courts, but later decided not to sit on the bench rather expressed his opinion regarding the non-maintainability of the petitions.

Justice Masood had opted out of the nine-judge bench with then senior puisne judge Justice Qazi Faez Isa, saying he did not consider the present bench a properly constituted court.

In the note, Justice Masood had regretted that the petitions challenging the military court trials were filed by those who apparently were not detained, nor facing trial with regard to the offences, allegedly committed on May 9 in the cantonment areas.