ISLAMABAD: Chief Justice of Pakistan Anwar Zaheer Jamali observed on Monday that militants persecuted people under “their own laws”, but sought justice under the Constitution from the Supreme Court whenever they landed in trouble.
“On one hand, terrorists are challenging the Constitution and the law of the land, but their counsel are citing fundamental rights in their defence,” the CJP observed while heading a five-judge special bench that had taken up 12 appeals against military court convictions for militants implicated in different acts of terrorism.
At the last hearing on Feb 24, the CJP had ordered all challenges against military court decisions to be clubbed together, and directed that executions of the accused would remain suspended until the petitions were decided.
Two of the 12 convicts whose appeals are being heard by the apex court were sentenced to death by military courts for their alleged involvement in the attack on the Army Public School in Peshawar.
CJP refers to war crimes tribunals, says such criminals are tried summarily and sentenced
Nearly all petitioners have pleaded that their right to a fair trial, as guaranteed by Article 10A of the Constitution, was denied as they did not receive copies of the military court judgment, nor were they afforded the opportunity to engage counsel or defend themselves.
Issuing notice to Attorney General Ashtar Ausaf, the Supreme Court asked the federal government to explain the procedures in place to ensure a fair trial under Article 10A. The court also ordered the government to present the case record, under which Aliur Rehman and Javed Iqbal Chaudhry were awarded death sentences by military courts.
During Monday’s proceedings, Justice Mian Saqib Nisar also asked the government to assist the court in establishing which law should be followed in these cases, especially when the courts were bound to follow the Qanoon-i-Shahadat (law of evidence) to ensure a fair trial.
The chief justice wondered aloud how the judiciary could close its eyes when Pakistan was in throes of foreign-sponsored terrorism, when saboteurs and terrorist elements were active against the armed forces inside our borders and when security personnel were suffering scores of casualties on a daily basis.
Should these militants be subject to ordinary laws, when they were directly at war with our armed forces, the chief justice asked.
However, senior counsel Asma Jahangir — who represents a number of military court convicts — maintained that if the Supreme Court started denying fundamental rights to citizens over terrorism allegations, things would become very difficult.
The counsel argued that while she too opposed militancy and terrorism — adding that she had raised her voice strongly against the bombing at a Lahore park on Easter — innocent people should not be penalised through hasty proceedings in the name of terrorism.
“It is the right of every individual that he should be treated in accordance with the law and that his fundamental rights be preserved,” she said, adding that the Supreme Court was the last forum of justice.
But referring to international precedent, the CJP said that ordinary courts and ordinary laws did not apply to individuals accused of war crimes. Rather, he observed, they were put in front of the firing squad following sentencing through a summary trial.
Does a person who does not acknowledge our Constitution have the right to be treated under the same law, the chief justice asked, adding that this was a question of loyalty to the state.
“There are many who do not recognise the Constitution,” retorted Ms Jahangir. Justice Khilji Arif Hussain agreed but observed that those who were conducting the trial would have to accept the law and Constitution.
The court will take up the matter again on Wednesday.