SC stays death sentences awarded by military courts

| Begins hearing petitions against 18th Amendment | To take up pleas challenging 21st Amendment later

ISLAMABAD - The Supreme Court on Thursday stayed the execution of death sentences awarded by military courts to six militants. According to a short order issued by the apex court, the death warrants of terror convicts issued by the military courts and those to be issued in future also stand suspended pending decision on the petitions against the military courts.
Noor Saeed, Haider Ali, Murad Khan, Inayatullah, Israruddin and Qari Zahir were awarded death sentences on April 2, while the seventh accused, Abbas, was given life imprisonment. The convicts were given the right to appeal against the sentences. According to the ISPR DG, these persons were involved in acts of terrorism, manslaughter and suicide bombing, causing loss of life and property.
A 17-judge Full Court headed by Chief Justice Nasirul Mulk heard the constitutional petitions of the Supreme Court Bar Association, the Pakistan Bar Council, the Lahore High Court Bar Association and 11 other bar councils and associations against the 21st and the 18th Amendment. The court clarified first it would hear petitions against the 18th Amendment and later take up the 21st Amendment, under which special military trial courts to decide terrorism cases have been set up.
At the outset of hearing, the CJP asked if there was any petition filed seeking stay of the execution of death sentences awarded by the military courts. Asma Jahangir came on the rostrum and informed the bench that on behalf of the SCBA she had filed the petition against the death sentences yesterday (April 15). The petitioner prayed to the court to pass an interim order and stay the execution of these persons till the final disposal of the constitution petitions.
The short order passed said the execution of death sentences which have already been awarded or would be awarded by special military courts in future is stayed. The chief justice pointed out that it has been prayed that those convicted to death are vulnerable as if the sentence is executed then it will be irreversible.
Attorney General for Pakistan (AGP) Salman Aslam Butt expressed reservation over the apex court’s decision and said the trial of the convicts in the military courts was not a secret crime and a complete procedure was adopted. “Prisoners have the right to appeal against the black warrants under the Pakistan Army Act 1952,” he added. He insisted there was no secret trial and contended there was remedy provided in the system and there was complete procedure give in section 133-B of the Pakistan Army Act 1952.
Upon that the chief justice said the trial was not publicised and when the death sentence was awarded its news was given to media.
Asma Jahangir said even the convicts’ families did not know about the trial and the sentences. They came to know through the media, she added. The former SCBA president said she could also file the affidavits of the convicts’ families.
Justice Nasirul Mulk said the trial of the convicts was not public, while it were just death sentences that were public. The chief justice said: “We don’t know much about the proceedings of the case as the trials were kept secret.” He remarked what if the appeal is also dismissed and the convicts are hanged.
The AGP said staying the execution of death sentences amounts to ultimately suspending the valid constitutional amendment. Justice Jawwad asked why it is necessary to execute the death sentences. Justice Asif Saeed Khan Khosa inquired from the AGP what was the appellate forum against the death sentences within the system (Army Act). Why there was need of holding the trial secretly. “In the Liaquat Hussain case, two persons were hanged during the proceeding of the matter. It was a big loss to the family.” The judge said their (six convicts) lives should be saved till the final decision.
The AGP said there should be no interim relief by suspending the constitutional amendment. The chief justice said then they would issue notice to him, and in the meanwhile suspend the death sentences. Justice Saqib said they would look into the vires.
Later, the court heard petitions against the 18th Amendment. The court was informed Akram Sheikh, counsel for the SHCBA, is on general adjournment. Ikram Chaudhry, representing the Justice Party, sought time, saying yesterday (Wednesday) a young man in the family was murdered therefore he could not prepare his case. He said that he is still interested in pressing his petition.
Justice Jawwad said the basic question in all the petitions is almost the same, adding the judgment on the 18th Amendment would be a precedent, therefore all the parties should give importance to this case.
Barrister Zafarullah Khan, appearing on behalf of the Wattan Party, said that 104 amendments were made in 60 articles of the Constitution through 18th Amendment and nine months were spent to prepare it, while millions of rupees were spent. He said that on 30-9-2010 an interim order was passed on the 18th Amendment and now after five years the apex court again took up this case.
He said the Supreme Court passed judgment on Article 175A and through the 19th Amendment strengthened its position as there are now six judges, including Chief Justice of Pakistan. Justice Nasir, Justice Khawaja and Justice Saqib inquired from him whether he was challenging the 19th Amendment or the order of January 26, 2011. Barrister Zafarullah failed to respond to the court’s query.
As the Full Court was hearing the arguments of Zafarullah one of the SC staff informed the chief justice that Justice Ijaz Ahmed Chaudhry’s wife had suffered heart attack. The chief justice therefore adjourned the hearing till April 22. Later, it was reported in the media that Justice Ijaz’ wife had expired.
Agencies add: Lawmakers approved a change to the country’s constitution in January to establish military courts to deal with terrorism cases, prompting concern from lawyers and rights activists.
The move came as part of government efforts to crack down on militants following the school slaughter in December which left more than 150 people dead.
Asma Jehangir, who filed a separate petition against the secrecy surrounding the military trials, said ongoing trials being heard by the new tribunals would continue.
“The court has not suspended hearing and trials in other cases,” she told reporters.
“We are against these kangaroo courts, we will challenge other trials if it is proven that these courts are against the basic human rights.”
Senior lawyer and retired Colonel Inam-ur-Rehman, who has defended cases before the military courts, hailed Thursday’s ruling as a “great achievement”.
“It shows that the judiciary is performing its role independently and no parallel judiciary can be allowed to work in the country,” he said.
He said terrorists should be tried and if found guilty executed, but only through a free and fair trial.
Parliament has approved the use of the courts for two years, and cases are referred to them by provincial governments.
But some have called for the trials to be more transparent.
The International Commission of Jurists (ICJ) on Wednesday condemned the military courts as “secret, opaque” and in violation of fair trial obligations.
“Pakistan’s new system of ‘military justice’ falls well short of domestic and international fair trial standards, flouts previous Supreme Court rulings, and goes against a regional and global trend of limiting rather than expanding military courts’ jurisdiction,” Sam Zarifi, ICJ’s Asia director, said in a statement.

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