In an interesting turn of events, the Supreme Court on Wednesday asked its three-member committee to decide whether a government appeal against an earlier court order banning the trial of civilians in military court should be heard by a six-member bench or a nine-member bench.
The SC on October 23, 2023, declared the trial of May 9 rioters in military courts as "null and void" and ordered authorities to conduct their hearing in ordinary courts.
The government had filed an intra-court appeal against the five-member bench’s order and a six-member SC bench suspended the operation of the earlier order on December 13, 2023.
When a six-member SC bench led by Justice Aminuddin Khan on Wednesday resumed hearing the government appeal in favor of military court, counsels for various petitioners contended that only a larger bench comprising 8 or more members could decide the matter.
Lawyer for former chief justice of Pakistan Jawwad S Khawaja—one of the petitioners who had challenged trials of civilians in military courts—argued in support of a larger bench in the light of the notes written by two SC judges—Justice Mansoor Ali Shah and Justice Yahya Afridi-- during various phases of the trial.
The lawyer, Khwaja Ahmad Hosain, said Justice Afridi in his dissenting note to the October 23 order referred to the SC’s verdict in the FB Ali case in which a five-member SC bench had allowed the trial of a civilian in a military court. He said there was a need to review the case verdict.
A member of the bench, Justice Mussarat Hilali, asked the council if they had challenged the FB Ali case verdict. Another member of the bench, Justice Muhammad Ali Mazhar, noted that Justice Afridi’s opinion could not be treated as a judicial order.
Barrister Salman Akram Raja pointed out that in the Rawalpindi Bar Association case verdict, a seven-member bench had allowed the trial of civilians in military court in the wake of the December 2014 attack on the Army Public School and now there was a need to form a bench comprising at least eight judges.
Read Trying civilians in military courts ‘against int'l law’
Justice Mazhar noted that in high courts, if two judges in a bench disagree then the matter is referred to a referee judge but this cannot happen in this case.
Justice Shahid Waheed asked what would happen if five judges in a nine-member bench upheld the SC’s October 23 verdict. Barrister Raja replied that it would be considered the verdict of a nine-member bench. Justice Mazhar, however, disagreed with Raja’s contention, stating that such a split verdict would create another controversy.
When Justice Waheed questioned what would happen if the three-member SC committee retained this six-member bench, Raja responded that the petitioners would then accept this bench.
Justice Waheed noted that if the six-member bench gave a 3-3 split verdict then the SC’s October 23, 2023 will be upheld. The bench later accepted the request to refer the matter to the SC committee for the formation of a larger bench.
Military court’s verdict
The bench also sought records of military court decisions regarding the conviction of the 20 May 9 riots. These 20 people were released by military authorities before Eid on the conclusion of their sentences.
Justice Shahid Waheed asked Attorney General for Pakistan (AGP) Mansoor Awan to place the military court's decisions in order to examine whether Article 10-A is being complied with or not.
Justice Hilali noted that military court decisions should be brought onto the judicial record. Justice Waheed said the decisions will reveal the procedures adopted during the trial. Justice Mazhar stated, "We want to see if the counsel of choice was provided or not to the May 9 accused."
Justice Aminuddin Khan remarked that the SC had conditioned the implementation of military court decisions on the final decision of the SC, yet it could seek decisions of the military courts if bench members so desired.
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