Former Chief Justice of Pakistan, Jawwad S. Khawaja, has filed a review petition in the Supreme Court against the verdict that allowed military trials of civilians. The petition challenges the ruling of a seven-member constitutional bench that had reversed an earlier five-member bench decision declaring such trials unconstitutional.
In the petition, Khawaja made the Federation and all four provinces respondents, arguing that the constitutional bench relied incorrectly on precedents, including the FB Ali case, District Bar Association case, and Shahida Zahir Abbasi case.
The petition notes that the five-member bench had earlier declared Section 2(1)(d) and Section 59(4) of the Army Act unconstitutional, ruling that suspects of the May 9–10 riots could not be tried in military courts. However, the constitutional bench, in its May 7 decision, overturned this judgment, asserting the legality of such trials and asking Parliament to legislate appeal rights for the accused.
“The observations and directions issued by the constitutional bench are contradictory,” the petition reads. “By ordering the provision of independent appeals, the bench itself admitted that military courts are not independent.”
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Justice Khawaja further contended that correcting legal errors is the fundamental objective of a review petition and argued that the constitutional bench erred in dismissing the five-member ruling without sound legal basis.
He emphasized that it is the core responsibility of courts to strike down any law that contradicts fundamental constitutional rights. This responsibility cannot be delegated to the Parliament.
The petition also objects to what it calls “biased remarks” in the verdict, pointing out that the constitutional bench made references to the May 9–10 incidents, which are still sub judice in anti-terrorism courts.
Two judges on the seven-member bench, Justice Naeemuddin Afghan and Justice Jamal Mandokhail, had dissented from the majority ruling, while four judges in the original case and two in the appeal had previously ruled against civilian military trials.
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Khawaja warned in the petition, “We have already suffered due to institutions overstepping their constitutional limits. This verdict will leave a lasting impression that the Supreme Court has accepted a subservient role to the executive.”
“If military trials are truly independent and constitutional, then the entire civilian judicial system may as well be placed under executive control,” he added.
The petition requests the court to set aside the May 7 verdict of the constitutional bench and reinstate the earlier judgment by the five-member bench.
