ISLAMABAD: The Lahore High Court Bar Association and Lahore Bar Association on Friday asked the Supreme Court to revisit and set aside the May 7 judgement on military trials of civilians.
The two separate petitions, filed through senior counsel Hamid Khan, are the second set of such challenges following an earlier petition submitted by former chief justice of Pakistan Jawwad S. Khawaja. In his petition, the former CJP highlighted that if not overturned, the May 7 verdict will serve as a constant reminder of ceding judicial space to executive by accepting that it can act as judges to try civilians in criminal cases.
On May 7, a five-judge Constitutional Bench of the Supreme Court had restored key provisions of the Pakistan Army Act (PAA) that allow the trial of civilians in military courts. The court ruled by a 5-2 majority in favour of overturning its earlier decision from Oct 23, 2023, in which the earlier five-judge Supreme Court bench had held the military trial of civilians involved in the May 9, 2023, acts of arson and attacks on the military installations as illegal and unconstitutional.
Except for Justice Jamal Khan Mandokhail and Justice Naeem Akhtar Afghan, who had dissented with the majority judgement, the detailed reasoning of the majority judgement has yet to come.
The review petitions argued that the May 7 judgement was passed in contravention of the Constitution and laws of Pakistan rather a reflection of the failure of the judicial system of Pakistan that fails to deliver justice and punish offence under its civilian dispensation.
By upholding vires of Sections 2 (1) d and section 59 of the PAA, the judgement endorses the trial of civilians by the courts martial and denies all civilians the protection of the Constitution and rule of law and also violates the UN Charter and other international legal charters to which Pakistan is signatory, the review petition regretted.
The May 7 judgement also endorses the legal maxim that “Inter Arma Enim Silent Leges” (Among arms, the laws are silent), the petition cited and went on to regret that ‘not only the laws but even the justice has been silenced’.
The petitions contended that the May 7 judgement was based on the misreading of the Constitution and the precedents cited particularly the cases of 1975 F B Ali and 1996 Shahida Zahir Abbasi since both were distinguished on law, Constitution and facts from the present case. The reliance on those precedents to reach at the conclusions in the May 7 verdict constitutes an error apparent on the face of the record, the petitions pleaded.
The majority of the judges that delivered the May 7 verdict wrongly overruled the Oct 23, 2023, judgement that was based on the correct interpretation of the Constitution and laws. The review petition argued that the fundamental rights in Part II, Chapter I of the Constitution were the soul of the Constitution and freedoms and rights guaranteed in the Constitution enable the people to fashion their lives and stand proudly amongst civilised nations.
The plea highlighted that courts must uphold these rights to shield citizens from the capricious and arbitrary use of authority and coercive apparatus of the state.
The authority, be it judicial, executive or legislative, is a sacred trust. The Constitution is to be viewed, read and interpreted keeping in view that high constitutional obligation of sacred trust. This trust is in fact a covenant with Allah Almighty to whom alone the sovereignty over the universe vests.
The Supreme Court is a trustee of peoples’ rights and is bound by the covenant which is prescribed in the oath which all constitutional functionaries, including judges, take before entering upon their offices, the judgement said.
