A 17-member bench of the Supreme Court of Pakistan has passed an order whereby all executions awarded by the recently established military courts are stayed until pendency of a writ petition filed by the Supreme Court Bar Association remains. The pending writ petition challenges the 21st Amendment to the Constitution, which has allowed for the institution of military courts with summary trials against alleged terrorists
In his short order, the Chief Justice of Pakistan (CJP) Nasir ul Mulk has also suspended the death sentences of six accused persons sentenced by a military court. The Chief Justice has also remarked that “the execution will remain stayed unless the court gives decision as we are hearing the matter of challenging some amendment; therefore, it is highly essential that these convictions be stayed. If we accept these petitions and someone is hanged in the meantime then how he will return [sic].”
The military courts were set up by virtue of the 21st Amendment; this Amendment was challenged in the Supreme Court on 6 January 2015. The petition has pleaded that, as per the Amendment, the military courts will not function under the supervision of the high courts or the Supreme Court, which is something against the basic structure of the Constitution, and that therefore the Court should take notice in the larger interest of the supremacy of the Constitution. The petition contends that instead of responding to the Peshawar school children massacre as a failure of intelligence and a failure of the Khyber Pakhtunkhuwa provincial government, the government had responded to it as a failure of the Judiciary and criminal justice system.
Ms. Asma Jahangir, a prominent human rights activist and lawyer, filed a different petition on 15 April 2015 in the apex court on behalf of the Supreme Court Bar Association, challenging the execution order of six convicts; this petitioned has argued that the military court proceedings violate the provisions of due process and fair trial as enshrined in the Articles 10, 10A, 12, 13, and 14 of the Constitution.
A full bench of the Supreme Court, comprising 17 judges, presided over by Chief Justice of Pakistan (CJP) Nasir ul Mulk, heard the petition. According to the Dawn newspaper, Ms. Asma Jehangir has raised a number of questions in the petition: whether the persons arrested were enemy aliens, and, if not, were they informed about the reasons for the arrest; were they given the right to consult and be defended by legal practitioners of their choice; and were they produced before a magistrate within 24 hours of arrest. The petitioned states that if the convicted militants are sentenced to death before the Supreme Court disposes the case challenging the establishment of military courts, justice will be compromised.
The Asian Human Rights Commission (AHRC) has addressed the constitutional and legal mire created by the 21st Amendment and the Army Act (see an AHRC statement issued on 8 April 2015). The arbitrary and opaque manner of awarding death sentences to six accused and life imprisonment to one on 2 April 2015 speaks about the fairness and transparency of the trial; the first names and fate of the convicted were only made known via Twitter by the Director General of the military’s media wing, Major General Asim Saleem Bajwa.
According to legal community, the military has been served a blow by the 17-bench order of the Court. Many have termed it a brave move by the Judiciary to check the infringement of the Military in what is inherently the jurisdiction of the Judiciary. The dichotomy of power, as envisaged in the Constitution, does not allow institutions to meddle with the ambit of other institutions. How can the Military be allowed to infringe on the workings of democratic institutions and deem itself above law?
The AHRC appreciates the decision of the full bench and terms it as a bold step towards the Judiciary upholding the rule of law, which has always remained under the threat of supra-constitutional forces in Pakistan. The decision will frustrate the steps taken against the independence of judiciary and fair trial by supra-constitutional institutions. For around half of Pakistan’s 67 years of existence, the Military has called the shots directly or indirectly; it is not used to public or judicial scrutiny and accountability. The establishment of military courts following the school massacre was another attempt to assert its power and undermine the Judiciary. The Court’s order is therefore welcome.
The AHRC urges the Pakistan government to immediately dissolve all military courts and try all terrorism suspects in the anti terrorist courts established so that justice is served. The Military leadership must understand that it cannot eradicate terrorism by operating military courts and executing a couple of hundred alleged terrorists.
