Military trials: Ex-CJP objects to Justice Tariq Masood's inclusion in bench

ISLAMABAD: Former Chief Justice of Pakistan (CJP) Justice Retired Jawwad S Khawaja has filed a constitutional petition against the inclusion of Supreme Court’s Justice Sardar Tariq Masood in the bench for hearing intra-court appeals against Supreme Court’s (SC) verdict on the military trial of the civilians, ARY News reported on Monday.

The Supreme Court (SC) will take up from December 13 (Wednesday) a set of intra-court appeals (ICAs) moved to challenge the Oct 23 apex court verdict against trials of civilians in the military courts.

A six-member bench headed by Justice Sardar Tariq will hear the petitions moved by the federal government, defence ministry, the Punjab, the Khyber Pakhtunkhwa (KP) and Balochistan governments requesting the suspension of the operation of Oct 23 short order during the ICAs pendency.

The former CJP Justice Retired Jawwad S Khawaja filed a constitutional petition in the apex court through his counsel, challenging Justice Masood’s inclusion in the six-member bench going to hear intra-court appeals against the SC’s verdict against military trials of civilians.

It is noteworthy to mention here that the former chief justice had moved the Supreme Court (SC) against the trial of civilians in military courts and demanded that it should be declared “unconstitutional”.

The fresh petition read, “Before the nine-member Bench could take up the matter, two of its members, Justice Qazi Faez Isa and Justice Sardar Tariq Masood refused to sit as part of the bench. Justice Isa read out a prepared note in open Court. After reading out the note, Justice Isa and Justice Masood rose from the Bench. The Bench was thereafter reconstituted.”

“Justice Masood issued a signed document dated 26.6.2023. The document was made public. It is not clear what the legal nature of this document is. It is not an order or a decision passed by him in his judicial capacity. It seems to constitute, in part, a grievance of sorts against the then Chief Justice of Pakistan regarding constitution of the nine-member Bench. Traditionally, Judges speak through orders, whether as part of the majority or the minority,” it further stated.

It added, “Justice Masood has decided that the vires of a law is “usually” challenged before a High Court. He has rendered this finding without giving the petitioners an opportunity to address the issue of why a direct approach to the Supreme Court was appropriate and necessary in this case and why such an approach has been endorsed by larger benches of the Supreme Court. Through his finding, Justice Masood considers the subject petitions by necessary implication as “unusual”. This finding is wrong and indicates a predisposition which compromises, possibly substantively and certainly as a matter of perception, independent and unbiased adjudication.”

The former CJP stated that Justice Masood should not hear this matter following his expressed views and findings. He prayed that Justice Masood should recuse himself from hearing this appeal and related appeals in the interest of justice.

He demanded to stop Justice Sardar Tariq Masood-led bench from passing any order in the relevant petitions.

Khawaja demanded to refer the matter back to the committee constituted under the Supreme Court (SC) Practice and Procedure Act 2023 for reconstitution of the bench for hearing the intra-court appeals.

On October 23, the Supreme Court (SC) announced its verdict by 4-1 in pleas against civilian trials in the military courts. The PTI chairman and others moved the top court challenging the military trial of civilians named in the May 9 riots triggered by the arrest of Pakistan Tehreek-e-Insaf (PTI) chief Imran Khan in the Al-Qadir Trust case.