Chief Justice Umar Ata Bandial remarked that making a full-court bench in the military courts case is not possible.
He made the remarks as a six-member bench of the Supreme Court resumed hearings in the military courts case on Tuesday.
Justice Bandial said that enough judges were not available to form a full-court bench at this time.
The case involves multiple petitions clubbed together asking SC to pass a judgement against the trial of civilians in military courts over involvement in the May 9 riots.
The bench is led by Chief Justice Umar Ata Bandial and includes Justice Muneeb Akhtar, Justice Ijaz ul Ahsan, Justice Ayesha Malik, Justice Yahya Afrid and Justice Mazahar Naqvi.
The hearings had been adjourned just before Eid ul Azha, as the court went on summer vacation. In the last hearing, the chief justice had remarked that he ‘hoped’ trials of civilians would not begin during the break.
Lawyer Abid Zuberi started his arguments on behalf of the Supreme Court Bar Association on Tuesday.
He referenced a decision by Justice Ajmal Mian to argue that only military personnel can be tried in military courts. He also referenced a judgement by Justice Qazi Faez Isa to say that military courts cannot try civilians.
Justice Yayha Afridi asked Zuberi if a constitutional amendment was needed to try civilians in military courts.
Chief Justice Bandial asked Zuberi if he thought that a constitutional amendment would be needed even if a link between the people under trail and defence of the country was established.
Attorney General Mansoor Awan said that the Liaquat Hussain case being referenced was decided by a nine-member bench. He then started presenting arguments in favour of a full-court bench for hearing the case.
Awan also read out Justice Afridi’s note of June 23 and said that even a member of the bench had written in favour of a full bench.
He further argued that this was a unique case in terms of the applicability of the Army Act which necessitated a full-court bench.
When Justice Ayesha Malik asked how he was arguing for a full-court bench when he had himself raised objections over a member of the bench before, the attorney general said that the bench should be made up of ‘available members’.
The federal government has asked the the Supreme Court of Pakistan to dismiss applications against trial of civilians involved in May 9 protests in military courts.
“The issues involved in the instant petitions are of critical importance to the national security and integrity of Pakistan,” says a CMA submitted on Monday.
It further argues that the army has been given the job of defending the country and any attacks against military installations is a ‘direct attack against the national security of Pakistan’.
It adds that all people in the violent protests of May 9 need to be tried under the army act as ‘deterrence’ against similar acts in the future.
The petition also cites the examples of Shakil Afridi and Kulbhushan Yadav to say that there is plenty of evidence that ‘foreign powers’ are working to destabilise and weaken the armed forces.
It goes on to say that trying civilians under the Army Act in this situation is ‘apt and proportionate’ response under existing laws of Pakistan.
The petition has argued that the Official Secrets Act and Army Act are both older than the constitution and trial under them does not affect a person’s fundamental rights.
