ISLAMABAD: Former chief justice of Pakistan (CJP) Jawwad S. Khawaja on Monday moved a request to initiate contempt of court proceedings against Prime Minister Shehbaz Sharif for not obeying May 7 Supreme Court directions to set up an independent appellate forum within 45 days over decisions rendered by court martial in the May 9, 2023 riots.
The direction has not been complied with and the federal government has disobeyed the order of the Supreme Court, pleaded a petition moved before the apex court through senior counsel Khwaja Ahmad Hosain. The former CJP was also a petitioner in the Intra-Court Appeal (ICA), which the five-judge constitutional bench had taken up and decided on May 7.
The petition has been filed under Article 204 of the Constitution read with sections 3 to 6 of the Contempt of Court Ordinance, 2003 and Order XXVII of the Supreme Court Rules, 1980.
Earlier on May 7, a five-judge constitutional bench of the Supreme Court had asked the federal government and the Parliament to consider bringing necessary amendments/legislation in the Pakistan Army Act (PAA) and allied rules within a period of 45 days to provide an independent right of appeal in the High Court against convictions awarded to civilians by the military courts.
The petition argued that the prime minister was liable for failure on part of the federal government to comply with orders of the Supreme Court.
The failure on part of the federal government to legislate and provide a civilian appellate forum renders all court martial proceedings against civilians as unlawful and unconstitutional, the petition argued, adding the appeal in the Intra-Court Appeal (ICA) and related appeals were conditionally allowed by the Supreme Court through the short order.
As no appellate forum had been provided within the given timeframe, the petition contended that the appeals now stand dismissed, and any subsequent proceedings under the legal provisions struck down by the Court in its original judgment dated October 23, 2023, are unlawful and unconstitutional.
The lapse of the 45-day period for enacting the legislation amounts to willful disobedience of the Supreme Court’s order, the petition stated, adding that no system of governance can function if the federation fails to comply with time-bound judicial directions.
Under Article 90 of the Constitution, read with the Rules of Business and past Supreme Court precedents, the prime minister—as the chief executive of the federation—is responsible for implementing court directives issued to the federal government.
Therefore, the petition argued, the prime minister is personally liable for contempt of court due to the government’s failure to act upon the court’s decision.
The petition further maintained that the case pertained to the protection and enforcement of fundamental rights—at its core, it was about the right to a fair trial and due process.
The petition reminded that the May 7, short order had held, the Constitutional Bench in unison, sensitise the need of legislative changes, which will also be 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.
The Constitutional Bench had expressly stated that it recognises the need for legislative changes which would be compliant with Pakistan’s international human rights obligations, and preserve the constitutional norms in the existing legal framework.
To uphold the Constitution and protect fundamental rights, the Supreme Court had directed the government to “consider and make” a law allowing civilians convicted by military courts to appeal in High Courts.
The petition concluded by stressing that the language of the short order was mandatory, leaving no discretion for the government. The government must legislate, and the legislation must provide a right of appeal to civilian courts for civilians tried by military courts.
