Justice Mansoor Shah quits SC bench on civilians’ trial in military courts dissolved again
CJP asked to constitute new bench as Justice Mansoor Shah steps aside,
ISLAMABAD –The Supreme Court has released a written order regarding the trial of civilians in military courts, accompanied by a separate note penned by Justice Mansoor Ali Shah.
It should be noted that a 9-member bench of the top court headed by Chief Justice Umar Ata Bandial took up the pleas filed by the PTI chairman, former Chief Justice Jawad S. Khawaja, well-known lawyer Aitzaz Ahsan and civil society against trying civilians in the military courts under the Army Act.
However, following objections raised by Justice Qazi Faez Isa and Justice Sardar Tariq Masood, the 9-member larger bench was dissolved after which the 7-member bench resumed the hearing.
At the outset of the hearing, Attorney General of Pakistan (AGP) Mansoor Awan raised an objection to the presence of Justice Mansoor Ali Shah on behalf of the federal government. A-seven member bench hearing pleas against trials of civilians in the military courts was dissolved again after Justice Mansoor Ali Shah recused himself from hearing on reservations raised by the federal government.
A six-member bench of the Supreme Court started hearing the petitions against the trial of civilians in military courts after a larger bench was dismissed earlier in the day.
The bench, headed by the chief justice of Pakistan, now comprises Justice Ijazul Ahsan, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahar Ali Akbar Naqvi, and Justice Ayesha Malik.
After the initial hearing, the Supreme Court of Pakistan issued a written hearing order.
The written order stated that that during the hearing, the Attorney General raised an objection regarding the presence of Justice Syed Mansoor Ali Shah on the bench, citing a conflict of interest due to his connection with a petitioner associated with former Chief Justice Justice Jawad S Khawaja. In response, Justice Mansoor Ali Shah voluntarily recused himself from the bench after considering the objection.
It further stated that since the case is of considerable importance, the other members of the bench have requested the Chief Justice of Pakistan to reconstitute the bench.
Additionally, the written order included a three-page note authored by Justice Mansoor Ali Shah, wherein he addressed the fact that one of the petitioners in the military court petitions, former Chief Justice of Pakistan Jawad S Khawaja, is his relative of whom the entire legal community knows. During the initial hearing on June 22, I openly inquired if anyone had any objections regarding this matter. In response, all the lawyers, including the Attorney General, confirmed that they had no objections. It is important to note that former Chief Justice Jawad S. Khawaja approached the Supreme Court in the public interest, and he has not been directly impacted by the ongoing case currently under consideration.
The honourable judge further stated that during today’s hearing, the Attorney General expressed the federal government’s objection against his presence on the bench. Regardless of whether I choose to remain or recuse myself, when a judge faces such objections, it is imperative to ensure that public trust remains uncompromised. Impartiality should not only be a moral consideration but also a practical one, and if a reasonable objection is raised against a judge, it becomes necessary to separate oneself from the bench to uphold public trust.
Justice Mansoor Ali Shah, while emphasising his commitment to upholding the Constitution of Pakistan, has clarified that he did not recuse himself from the bench presiding over the military courts case. He expressed his dedication to a transparent trial, protection of fundamental human rights, and respect for humanity. Despite having reservations about the formation of a full court bench for such a significant public interest case, I choose to be part of the bench. He highlighted the importance of preserving the credibility of the institution and ensuring both apparent and genuine impartiality in the delivery of justice. Trust from the public and the rule of law rely on the presence of unbiased and fair justice.
The Supreme Court’s bench hearing petitions against trial of civilians in military courts on Monday dissolved again as Justice Mansoor Ali Shah recused himself from hearing the case after objections raised by the government over his inclusion in the seven-member larger bench.
The bench hearing the petitions is headed by Chief Justice Umar Atta Bandial. Justice Ijazul Ahsan, Justice Mansoor Ali Shah, Justice Muneeb Akhtar, Justice Yahya Afridi, Justice Mazahir Ali Naqvi and Justice Ayesha Malik are also part of the bench.
On the third hearing of the case on Monday, the federal government objected to inclusion of Justice Mansoor Ali Shah in the bench. The attorney general, taking the rostrum, said that one of the petitioners was a relative of Justice Mansoor Ali Shah, so case his conduct might be affected.
Justice Mansoor Ali Shah remarked that on the very first day he had asked everyone that if anyone had any objection, he could let him know.Meanwhile,
However, today, the AGP submitted to the court that he had been “instructed [by the government] that Justice Mansoor Ali Shah should not be a part of the bench.”
After this, the SC judge recused himself.
The surprise move of the government angered Chief Justice of Pakistan (CJP) Umar Ata Bandial who admonished the AGP and adjourned the hearing briefly, saying they will assemble again shortly with a new bench.
Later, a six-member bench headed by CJP Umar Ata Bandial resumed the hearing. Justice Ijazul Ahsan, Justice Munib Akhtar, Justice Yahya Afridi, Justice Ayesha Malik, and Justice Mazahar Ali Naqvi are the other members.
Earlier, during the first hearing last week, Justice Shah informed the court that he was a relative of a petitioner and that if anyone had concerns about his inclusion in the bench, he would recuse himself.
At that time, AGP Awan denied having any concerns on the matter.
Initially, the petitions were fixed before a nine-member bench, but Justice Qazi Faez Isa and Justice Tariq Masood objected to it. Later, the bench was dissolved and a new bench was formed to hear the case.
Enraged workers of Pakistan Tehreek-e-Insaf (PTI) resorted to violence in reaction to their party chief’s arrest on May 9 after which the government decided to try the vandals who attacked army installations in military courts.
A number of petitions were filed in the Supreme requesting the apex court to declare the military trials “unconstitutional”.
The pleas were filed separately by PTI Chairman Imran Khan, former chief justice Jawwad S Khawaja, legal expert Aitzaz Ahsan, and five civil society members, including Piler Executive Director Karamat Ali.
Taking issue with the AGP’s request today, CJP Bandial remarked: “The bench will not be formed at your will.”
He then demanded to know on what basis the federal government has objected to Justice Mansoor.
The AGP responded that the objection had been raised due to a conflict of interest.
Irked with the AGP, the CJP asked: “Are you objecting to Justice Mansoor on bias or conflict of interest?”
The attorney general reiterated that the objection was based on a conflict of interest.
“You are a top-class lawyer and the court has confidence in you,” the CJP said.
However, he pointed out that there was a link in the continuum of objections to judges.
“Earlier, the government raised the issue of bench ratio,” CJP Bandial remarked.
“No one doubts the competence of the judge against whom the objection is being raised,” the CJP responded, adding that this was not the first time the government had raised such objections.
“No one objected to the 90-day clause in the Punjab elections case; objections were raised only against the bench,” he said.
“In the election case, instead of the constitutional matter of 90 days, an objection was raised on proportionality,” he added.
He continued that the apex court had avoided taking strict action after the government failed to implement its election order.
“The Supreme Court is not using a stick, but in what capacity are others using the stick?” he asked.
“We avoided contempt of court proceedings in the election case. Now, we think it’s time to take a step back.” the CJP observed, adding that the “moral responsibility of right and truth belongs to this court”.
“Former chief justice Khawaja is a dervish person; will Justice Mansoor benefit him?” he asked, asking, “Does the government want to make the bench controversial again?”
“Should [we] ask the prime minister why an objection was raised on the basis of a relationship?” he asked.
He further defended Justice Shah saying the latter was not the sort of person to let his relationship influence the decision.
“Do not tarnish the Supreme Court, do not ridicule it,” he thundered, asking what message the government was trying to convey?
Terming the development a “dark day in judicial history”, Advocate Latif Khosa, who is representing petitioner Atizaz Ahsan, said: “[They] don’t let the courts make decisions, [yet they] mock its decisions.”
Furthermore, Advocate Salman Akram Raja, who is representing Junaid Razzaq and was expected to present his arguments today, said: “It is a case of fundamental rights, there should have been no objections against the bench.”
However, he added that Justice Shah should “review his decision”.
At this, Justice Shah remarked: “I know my conduct well.”
He added that he would “never be a part of the bench again”, if anyone could “raise a finger” against him.
Moreover, the lawyer of the petitioner of Hamid Khan said, “There is no point of objection on this occasion.”
Lawyer Faisal Siddiqui added, “Justice M Arkani had once shared a joke with his students. He said that if you start losing the case, object to the bench.
“This is what the federal government is doing now.”
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