ISLAMABAD: The Supreme Court Bar Association (SCBA) requested the Supreme Court on Wednesday to stay execution of the militants convicted by military courts, a day before a 17-judge full court is to take up a set of challenges to the 18th and 21st amendments as well as the procedure for appointment of superior court judges.

“The matter of establishing the military courts under the 21st Constitution Amendment is being heard by the Supreme Court and there are strong arguments against their establishment as evident by the fact that this (apex) court has ordered that the constitutional petitions be heard by a full court,” said a petition filed by rights activist Asma Jehangir on behalf of the SCBA.

On April 2, Chief of the Army Staff Gen Raheel Sharif had ratified the death sentence awarded by the military courts to six Tehreek-i-Taliban Pakistan militants and life-imprisonment to one.

The decision evoked a strong reaction from legal experts and rights activists.

“It is, therefore, respectfully prayed that this court be pleased to pass an ad interim order staying execution of the persons sentenced to death by the military courts under the jurisdiction extended to it by the Pakistan Army (Amendment) Act 2015, till final disposal of its petition,” the SCBA said.

SC full bench takes up challenges to 18th, 21st amendments today

The petition argued that the 21st Amendment by itself did not dismiss observance of fundamental rights guaranteed in the Constitution. It said that despite efforts the petitioner had failed to get information whether Articles 10, 10A, 12, 13 and 14 which ensured safeguards to arrest and detention, fair trial, protection against retrospective punishment, protection against double punishment and inviolability of dignity of persons had ever been applied by military courts during the trial process.

Expressing concern over the way the accused were treated, Asma Jehangir raised a number of questions in the petition and asked whether the persons arrested were enemy aliens and, if not, were they informed about the reasons for the arrest; whether they were given the right to consult and be defended by legal practitioners of their choice and whether the accused were produced before a magistrate within 24 hours.

The petitioner contended that rights of the accused were not protected through a fair trial and by observing the established principles of due process as guaranteed under Article 10A.

Ms Jehangir said that protection against retrospective punishment had not been extended to the accused and asked whether they were tortured for the purpose of extracting evidence.

“All these factors are crucial for protecting individuals against arbitrary trials,” the petition said, adding that as a guardian of the Constitution, the Supreme Court had to ensure that fundamental rights were extended to persons arrested and tried within Pakistan.

The recent trials by the military courts were neither made public nor were they transparent, it said, adding that military trials did not ordinarily observe principles of due process and, therefore, the apprehensions of the petitioner were genuine and had merits.

Those sentenced to death penalty, the petition argued, were especially vulnerable because if “it is executed it will be irreversible”.

Published in Dawn, April 16th, 2015

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