by Hasnaat Malik in The Express Tribune, Oct 27, 2023
ISLAMABAD: Soon after the retirement of chief justice Umar Ata Bandial, the Supreme Court is showing its muscles by giving decisions in the ongoing month that may affect the interests of the ‘powerful circles’.
A five-judge bench led by Justice Ijazul Ahsan has given an unprecedented ruling by declaring a 56-year-old law to try civilians in military courts as unconstitutional.
The bench also held that the civilians, who were in the custody of the military on the charges of attacking its installations, would be tried under the ordinary criminal law.
It has been learnt that the interim federal government is planning to move an appeal against the larger bench’s order on Friday (today).
The government will also request for the suspension of the larger bench’s order.
A senior government functionary wondered as to how five judges could declare certain provisions of the Army Act, 1952 unconstitutional even though they were upheld by a larger bench comprising of the same number of members in the past.
A five-judge larger bench in the FB Ali judgment in the 1970s had endorsed the trial of civilians in military courts.
He contended that more than five judges could have overturned the judgment.
Under the Supreme Court (Practice and Procedure) Act, the appeal will have to be fixed before a larger bench within 14 days.
Interestingly, four future chief justices were members of the larger bench, which gave the verdict against military justice. Justice Ahsan will be the next CJP in the month of October next year.
The PML-N is very critical of Justice Ahsan since the Panamagate case judgment that disqualified its supremo Nawaz Sharif as the premier. However, the PTI is very comfortable with him as the case was filed by its chairman, deposed prime minister Imran Khan.
Justice Ahsan’s tenure as the CJP will be crucial for the PTI, which is currently facing difficulties on several fronts.
On the other hand, a three-judge bench of the apex court, led by CJP Qazi Faez Isa, is adjudicating some significant matters — especially the implementation of Faizabad sit-in judgment.
The federal government through Attorney General for Pakistan Mansoor Awan will submit a report on the implementation of the court’s judgment in the Faizabad sit-in case on Friday (today). The report will suggest as whether or not the defence authorities are willing to comply with the verdict. The bench is also raising questions about the commercial activities of departments, which have links to the ‘powerful circles’.
Upholding the Sindh High Court’s verdict, an SC bench declared the professional tax levied by the Cantonment Board as unconstitutional.
The CJP questioned the rationale behind the construction of shopping malls on land designated for military purposes, expressing that it was originally intended for non-commercial uses.
The same bench on October 25 upheld the SHC order that banned the construction of a multi-storey building in the parking area of Askari-IV neighbourhood in Karachi. An appeal was submitted by the Army Housing Directorate against the verdict.
The bench raised questions about the legal status of the Army Housing Directorate.
SC’s Justice Athar Minallah noted that the armed forces had no jurisdiction beyond Article 245. Senior lawyer Aitzaz Ahsan has also moved a constitutional petition in the SC against the illegal practice of enforced disappearances.
Justice Minallah had already written a letter to former CJP Bandial for fixing cases related to enforced disappearances as well as those pertaining to the protection of religious minorities.
If the court fixes the PPP leader’s petition, then the role of intelligence agencies will come under criticism.
Separately, a three-judge bench of the apex court led by Justice Ahsan and comprising Justice Jamal Khan Mandokhail and Justice Shahid Waheed quashed an FIR filed against the news director of a private TV news channel in connection with a sedition case involving former PM’s aide, Shahbaz Gill.
Gill was accused of inciting rebellion within state institutions.
The verdict, authored by Justice Mandokhail, held that to protect as well as promote citizens’ rights, the state must exercise its power and authority in accordance with the Constitution.
“[The] print and electronic media are the means of receiving and providing such information to and from the people. We have observed that upon exercise of such right, politically motivated FIRs are being registered for offences mentioned in Section 196 of the Code, mostly against politicians, political workers, media persons, and human rights activists, and in some cases against their family members as well,” it read.
“It is hard to believe that the chosen representatives of the people, political activists, rights activists and media persons can indulge themselves in anti-state activities,” it continued.
“The act of indulging its citizens in malicious and frivolous prosecution by the government without any substance on the plea that the thoughts are anti-state amounts to undermining the constitutional command and as such, depriving citizens from their fundamental rights of freedom of movement, assembly, speech, and right to information,” the verdict added.
The SC observed that such misuse of authority created a sense of fear and insecurity in the society that caused hatred against State institutions.
“When citizens are put in fear, they cannot perform their functions freely, which amounts to preventing them from contributing towards the society in accordance with the Constitution, law and as per their conscience,” it further noted.
The court observed in such a hostile atmosphere, the media could not perform its functions freely; rather it would undermine the freedom of speech, expression, and access to information of the citizens, as guaranteed by the Constitution, resulting into mistrust in the institutions.
“A democratic government is considered to be by the people, of the people and for the people. It must, therefore, develop an atmosphere of tolerance, to promote political and social justice; to create a habit of listening to healthy criticism, which is the beauty of democracy,” the judgment noted.
“Thus, the government must accept the will of the people, instead of considering its critics and political opponents as enemy of the State, to avert hatred and mistrust of citizens upon the institutions, by refraining itself from misusing the power and authority and to avoid malicious, baseless and frivolous prosecution against its citizens,” it added. https://tribune.com.pk/story/2443223/sc-shows-guts-as-bandial-retires
