Military trials : Supreme Court to hear intra-court pleas against military trial verdict on Dec 13

The Supreme Court formed a six member larger bench headed by Justice Sardar Tariq Masood to hear the intra-court appeals against the court’s (Oct 23) decision halting the trial of civilians in military courts.

In the (Oct 23) apex court verdict, A five-member Supreme Court (SC) bench declared the military trials of civilians arrested in the wake of violent protests in the country on May 9 to be null and void.The court said that the trial of May 9 and 10 suspects would be conducted in ordinary courts.

The larger bench of the Supreme Court headed by Justice Sardar Tariq Masood comprise Justice Aminuddin Khan, Justice Mohammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Musarrat Hilali and Justice Irfan Saadat Khan. – on Dec 15.

Supreme Court committee on forming benches

On November 30, the Supreme Court committee decided that a larger bench would be formed by its chairman, Chief Justice of Pakistan Qazi Faez Isa, and another member, Justice Sardar Tariq Masood, to hear the intra-court appeals against the SC’s October 23 verdict. However, CJP Isa, Justice Jamal Khan Mandokhail and Justice Athar Minallah are not part of the larger bench.

In light of the Supreme Court committee minutes, there must be a review petition before filing the intra-court appeals.The apex court surprisingly constituted a bench undoing its own decision of review first, appeal later procedural system.

Question arises on Even number of judges in the larger bench

As soon the bench is constituted, the discussion is already started upon the bench participating judges as well as the number of judges included in the bench.

The court practice of forming benches is in odd number rather than in a perfect balance. First questions is what will be the ratio of the court decision if it was divided in equal numbers — three judges in favour and three against it, pushing a tie.

Question on participating judges in the larger bench

“How can Justice Sardar Tariq Masood head this bench? He has already passed an order about the lack of maintainability of these cases,” senior counsel Faisal Siddiqui asked.

Justice Tariq Masood was initially part of the earlier nine-judge SC bench which heard the challenges to the military courts, but recused the bench rather expressed his opinion regarding the non-maintainability of the petitions.

In a 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.

In another note, Justice Masood wrote : If a law is challenged, usually it is before the high court under Article 199 of the Constitution.

However, these petitions have been filed in this court [the SC] under Article 184(3) of the Constitution [the jurisdiction of which] can only be invoked in the public interest for the enforcement of fundamental rights [as] mentioned in Chapter 1 of Part-II of the Constitution,” his note added.

Intra-court appeals against Supreme Court verdict

In their intra-court appeals, the caretaker federal and provincial governments of Khyber Pakhtunkhwa, Punjab and Balochistan as well as the Ministry of Defence urged the SC to restore the sections of the Official Secrets Act that were declared illegal by the bench.