ISLAMABAD: The federal government on Tuesday asked the Supreme Court to dismiss the Supreme Court Bar Association’s (SCBA) petition that led to the suspension of death sentence handed down to six militants, since the convicts and their organisations were waging war against the state of Pakistan.

“The convicts and their organisation has declared and waged a war against the state of Pakistan by slaughtering army/Frontier Corps personnel, preparing suicide bombers, attacking armed forces/civilians and installations which resulted in deaths and injuries, abduction for ransom, possessing explosives and collection of funds for terrorist organisations,” argues a six-page rejoinder filed by the federal government, considered to be the first-ever justification the government has offered after a Field General Court Martial (FGCM) sentenced the six militants to death.

A full-court, consisting of all 17 judges of the Supreme Court and headed by Chief Justice Nasirul Mulk, on April 16 had suspended the executions awarded by the military courts on an application filed by rights activist Asma Jahangir on behalf of the SCBA. The apex court, which resumes hearing challenges to the 18th and the 21st amendment from Wednesday, had also asked the government to submit a reply to the SCBA petition.

“The federal government completely and fully appreciates the concern of the Supreme Court with regard to upholding the constitution and its duty to enforce fundamental rights,” conceded the reply.

But the fundamental rights guaranteed by the Constitution have a corresponding duty, given in articles 5 and 6 of the constitution, it said and pleaded that the court recall its April 16 judgment of issuing a stay against the convictions.

It is fundamental to determine whether a person who has engaged in war against Pakistan and has no allegiance and loyalty to the state can still remain entitled to the protection of the fundamental rights under the Constitution, the rejoinder argued.

“The petitioner may have a legitimate concern with regards to the enforcement of fundamental rights, but earlier judgments of the Supreme Court, particularly in the cases of Sheikh Liaquat Hussain 1999 and Mehram Ali 1998 were fundamentally different on facts from the present cases,” it emphasised.

The government explained that the six terrorists convicted by FGCM under the Pakistan Army Act (PAA) 1952 have an efficacious and adequate remedy which can be availed by the convicts. Therefore, SCBA’s petition was premature and liable to be dismissed.

Moreover SCBA admittedly was not a party to the trials under which the six militants were convicted, the rejoinder emphasised, adding that none of SCBA’s rights were violated hence it had no locus standi to challenge the convictions through a miscellaneous application.

The government also reminded the court that it was seized with petitions in which the question of jurisdiction of the apex court was the matter at issue and had yet to be determined by the Supreme Court.

In the absence of the determination of that basic question of jurisdiction, the April 16 interim order amounts to an assumption of jurisdiction in the matter without even determining whether the apex court had jurisdiction or not, the reply said.

Even in a trial held under the Code of Criminal Procedure (CrPC) 1898, the convict has to adopt the legal procedure given therein, the reply stated, reminding the Supreme Court that it had no appellate jurisdiction against the decision of the FGCM as envisaged in section 133 of PAA.

It also explained that under PAA, a number of options were available to the convicts, including a mercy petition to the Chief of Army Staff as envisaged under section 133(1), as well as an appeal under section 133(b) and then a mercy petition to the president before the punishment is executed.

This process usually takes about six months and these six persons have been convicted only a few days ago. The April 16 interim order passed by the Supreme Court is rather premature, particularly when other remedies are available but are not exhausted. Therefore, this order may be reconsidered and recalled in the interest of justice, the rejoinder emphasised.

Published in Dawn, April 22nd, 2015

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