SC’s judgment on civilians’ trial by military courts: Appeals filed as per advice of the Law Division: AG

ISLAMABAD: Attorney General for Pakistan (AGP) on Thursday informed the Supreme Court that the appeals against the SC’s judgment on the civilians’ trial by the military courts were filed as per the advice of the Law Division.

AGP Mansoor Usman Awan stated that the federation is before the apex court to defend the federal legislation i.e. Army Act, 1952, adding there was no need for cabinet approval to file appeals.

He apprised that the Law Division has advised various departments to file appeals against the SC 5-judge bench judgment. He further said that in the light of the Supreme Court’s judgment in the Rasheed Ahmed case 2017, amendments were made in Section 14(1)(c) of the Rules of Business to engage private counsels by the government departments.

A seven-member bench, headed by Justice Aminud Din Khan and comprising Justice Jamal Khan Mandokhail, Justice Muhammad Ali Mazhar, Justice Syed Hasan Azhar Rizvi, Justice Shahid Waheed, Justice Irfan Saadat Khan, and Justice Shahid Bilal Hassan heard the appeals against the SC’s judgment regarding the trial of civilians by military courts.

Sardar Latif Khosa, counsel Barrister Aitzaz Ahsan, informed the bench that a five-year-old child of one of the detenues died in waiting for his father’s return. The bench then directed the attorney general to appoint a focal person for the meeting with detainees and give priority to the person whose child has died.

Brig Imran Director (Legal) at the Ministry of Defence submitted that a telephone number is available 24 hours for inmates to talk to their families. Justice Mazhar inquired whether he had the list of relatives with whom the detainees could talk. He replied in positive.

During the proceeding, Justice Mazhar said that as an appellate court, they only have to see the error in the judgment of the five-judge bench, adding that the attorney general and the federation’s counsel now have to point out the error.

Justice Mazhar noted that the appeal under Law Reform Ordinance, 1972 is the only remedy against the judgment rendered in writ jurisdiction under Article 199 of the constitution. He observed that in the past many government servants, without giving an opportunity to defend themselves, were removed from their posts in cases heard under Article 184(3).

Justice Waheed said the Court has to rectify the error in the judgment and cannot substitute the views expressed in it. The main question before us (judges) is the scope of the appeal, he added. Justice Jamal inquired, can this bench reverse the five-judge bench judgment?

The attorney general replied “yes”, saying Intra-Court Appeal (ICA) provided under Section 5 of the Supreme Court (Practice and Procedure) Act, 2023 is akin to an appeal under the Law Reform Ordinance. He contended that substantive rights i.e. appeal is provided under the Act because the Supreme Court, which is the final court, under Article 184(3) of the constitution decides the matters in its original jurisdiction and there was no relief to affected parties.

Justice Waheed questioned if a bench in a case under Article 184(3) gives an opinion in accordance with the law, then another bench in ICA can give a different view? The attorney general responded that the apex court in an appeal under Article 184(3) can revisit the judgment in view of Entry 55 of the Legislative List in the Constitution. Justice Mazhar said if the judges sit in the appeal with pre-determined mind then hearing it is useless.

Later, Khawaja Haris, representing the Ministry of Defence, started his arguments on the appeal. The case was adjourned for an indefinite period. Justice Amin said that the case will be fixed on the availability of the bench.

Copyright Business Recorder, 2024