Daily Times

Most people in Pakistan thought that with the passage of the 21st Amendment, under which the Pakistan Army Act 1952 was also amended to allow the military courts being set up to try terrorists, this was a done deal. Perceptive observers however still had one eye on the possible legal challenges to the Amendment and the military courts that flowed from it. These legal challenges emanated from a number of Bar Associations, including the apex Supreme Court Bar Association (SCBA). Now these critical eyes have been vindicated by a full 17-member bench of the Supreme Court (SC) headed by the Chief Justice having stayed the execution of six ‘hard core terrorists’ and life imprisonment to a seventh as well as any further death sentences the military courts may impose. The SC further ruled that the convicted persons had the right of appeal against their convictions. The SCBA had pleaded for an interim stay of the executions on the ground that if carried out, the death sentences would be irreversible whereas the SC had yet to decide the challenges to the 21st (and some aspects of the 18th) Amendment. The bench accepted the argument of irreversibility and the pending constitutional challenge to the scheme of the 21st Amendment. It may be recalled that on April 2, COAS General Raheel Sharif had ratified these sentences. However, no further information was available about who these persons were, where and when they were picked up, what specifically they were accused and convicted of and where they were tried. The SCBA had argued these points before the bench and expressed its ignorance whether the hangings had already been carried out or not. The Attorney General was unable to convince the bench that a stay would mean suspending the 21st Amendment. He tried to dispel the impression that the trials were held in secret, arguing that legal procedures had been followed, including the right of appeal under Section 133(b) of the Pakistan Army Act 1952 (which had been amended by the 21st Amendment to allow civilians to be tried in the newly created military courts). The SC however, was concerned that capital punishment had been awarded in secret since the information only came to light from newspaper reports. Since the death sentences if carried out would be irreversible, the court held, executions should be halted until it had had the opportunity to dispose of the challenges to the 21st Amendment itself. This decision goes to the heart of the matter, since the Amendment is the mother of all else, even the setting up of these military courts.

The legal fraternity has hailed the interim order of the SC as fully in consonance with the demands of justice. The fact that the 21st Amendment (passed, it must be said, in haste by parliament in the wake of the Peshawar school massacre when emotions throughout the country were running high and calls for stringent action against the terrorists rent the air) was always open to challenge on the touchstone of due process, transparency and the right of appeal, not to mention the considerations of human rights defenders, was not in doubt. It is a reflection of the maturity of Pakistan’s democratic order that the superior judiciary is sensitive to and cognizant of its role and responsibilities in safeguarding the hallowed demands of justice and due process to prevent even one innocent person being sent to the gallows without ensuring a fair and free trial. The legal fraternity too has played its due role in this regard. Considerations of strict and unremitting actions against terrorists notwithstanding, the consensus has long existed in political and civil society and the legal fraternity that military justice does not fulfil the principles of justice. This consensus has now found expression in the challenge mounted in the SC, where it has found resonance in the remarks and the interim order of the full bench. Parliament’s wisdom is not to be lightly questioned since it is the repository of the people’s will through their elected representatives. However, this should not be elevated to blind faith in which it is perceived that parliament can do no wrong. Ours may be a Westminster-type democracy, but there is a profound difference between what the British parliament is empowered to do in the absence of a written constitution and how far our parliament can go, given that its decisions and actions can be challenged on the touchstone of the constitution itself. It is not for us to declare finally on these intricate constitutional and legal matters. The case is safely in the hands of the collective wisdom of their honourable lordships where it belongs. The rest of us must await their final verdict. *