ISLAMABAD:
Former chief justice of Pakistan (CJP) Jawwad S Khawaja has filed a petition in the Supreme Court, seeking initiation of contempt proceedings against Prime Minister Shehbaz Sharif for not implementing an SC constitutional bench’s (CB) order in the May 9 rioters’ military trial case.
A full CB of the apex court on May 7 accepted appeals against the Supreme Court’s October 2023 order, setting aside the trial of over 100 May 9 rioters by military authorities.
However, in the majority order, the CB, sensitized “the need of legislative changes”, compliant to the requirements laid down under the International Covenant on Civil and Political Rights (ICCPR) for maintaining and preserving the constitutional and societal norms in the existing legal framework.
“Therefore, the matter is referred to the Government/Parliament for considering and making necessary amendments/legislation in the Pakistan Army Act, 1952, and allied Rules within a period of 45 days.
“[This is necessary] in order to provide an independent right of appeal in the high court against the conviction awarded to the persons by the court martial/military courts under sub-clauses (i) & (ii) of Clause (d) of subsection (1) of Section 2 of the Pakistan Army Act, 1952, read with sub-section (4) of Section 59 of the Pakistan Army Act, 1952,” the order said.
Justice (retd) Khawaja stated that during the hearing of the case, Attorney-General for Pakistan Mansoor Awan referred to the Jurist Foundation vs Federal Government case “which has been expressly noted by the CB in its short order.
“In that case, the SC concluded that there was no provision for the tenure/retirement age or the extension of the COAS in the laws relating to the armed forces. Based on assurances given by the federation, the government was given a six-month time period to legislate to fill this vacuum,” he said.
The petition said the SC held that in order to give effect to a constitutional mandate, the court has the authority to direct the federal government to initiate and process legislation.
“In the present case, the CB has referred to the Jurist Foundation judgment in its short order.
The petition noted that the federal government has been directed to legislate to provide a right to appeal in the high court for civilians convicted by military courts. “This is a court direction to enforce a constitutional mandate and protect fundamental rights,” it added.
The petition said the short order was passed on May 7 and the federal government was given 45 days to make amendments providing a right to appeal to the high court for civilians convicted by military courts.
It noted that the 45-day period has lapsed and while the short order holds the field, the federal government has failed to comply with it.
