Appeals against mly trials verdict: Ex-CJP Khawaja seeks judge’s recusal from bench

ISLAMABAD: Former Chief Justice of Pakistan Jawwad S Khawaja on Monday moved the Supreme Court (SC) against the inclusion of Justice Tariq Masood’s inclusion in the bench slated to hear the intra-court appeals against the top court’s verdict annulling civilians’ trials in military courts.

Justice Masood heads the six-member SC bench that will take up multiple pleas filed by the federal government, Ministry of Defence, and provincial governments of Punjab, Khyber Pakhtunkhwa, and Balochistan on December 13 against the SC verdict that declared the trials of civilians in military courts as “null and void”.

The federal government, following the May 9 riots — erupted after the arrest of Pakistan Tehreek-e-Insaf (PTI)-then chairman Imran Khan — which saw military installations being vandalised across the country, had announced to hold military trials of those allegedly involved in the riots.

However, multiple petitions were filed in the SC by Imran, Aitzaz Ahsan, Pakistan Institute of Labour Education and Research (Piler) Executive Director Karamat Ali, and former chief justice of Pakistan Jawwad S Khawaja against the military trials of civilians.

On October 23, a five-member apex court bench headed by Justice Ijaz Ul Ahsan unanimously admitted the aforesaid pleas and nullified the government’s decision to try civilians in military courts.

Following the SC verdict, federal and provincial governments along with the defence ministry filed intra-court appeals (ICAs) against the said verdict.

Former top judge Khawaja contended that Justice Masood had already expressed his views on the said matter — non-maintainability of the petitions filed against civilians’ military trials — via his written note and so he must recuse himself from the bench from hearing the pleas filed against the SC verdict.

“These four petitions have been filed by those who apparently are not detained, nor facing trial with regard to the offences, allegedly committed on 9th May 2023 [...] The said persons had attacked, destroyed and/or burnt public property and the property of the armed forces [...] If a law is challenged, usually, it is before the High Court under Article 199 of the Constitution however these petitions have been filed in this court under Article 184 (3) of the Constitution which jurisdiction can only be invoked in the public interest for the enforcement of fundamental rights,” Justice Masood’s note had read.

Khawaja’s petition further argues that since Justice Masood considers the petitions “unusual”, it indicates “a predisposition which compromises, possibly substantively and certainly as a matter of perception, independent and unbiased adjudication.”

It also contends that Masood, in his note, found that each case has to be considered on facts, he therefore, reached the conclusion that the petitions against civilians’ military trial were not maintainable under Article 184(3) of the Constitution.

Stressing that a judge who has, without hearing the parties, made a public and written finding in respect of a specific issue between the parties, the plea highlights that it would not be fair for Justice Masood to hear this matter.

In his petition, the former judge has called for Justice Masood to recuse himself from the said case and not head the bench in the interest of justice, and to refer the matter back to the committee constituted under the Supreme Court Practice and Procedure Act 2023 for reconstitution of the bench which is to hear the ICAs.