Pakistani government's reasons for opposing stay of execution

While the full text is not available, this article in the Express Tribune provides specifics about the arguments advanced in the Pakistani government's 6-page opposition to the stay of execution ordered by the Supreme Court last week in the 21st Amendment cases. The reasons boil down to a few (the numbered argument headings in bold are Global Military Justice Reform's):

1. Those who are under sentence of death have disqualified themselves from the fundamental protections of Pakistani law.

The government also urged the top court to determine if a person who has waged a war against Pakistan and is not loyal to the state could still be entitled to protection of his fundamental rights under the constitution. 

“The convicts were apprehended during operations in Fata for waging a war against the state. They were in lawful custody under the law,” reads the government’s response. 

The reply said the six men had slaughtered army and Frontier Corps personnel, trained would-be suicide bombers, attacked civilians and important installations, causing many deaths and injuries. 

“They were also involved in kidnappings for ransom, possessing explosives and collecting funds for terrorist organisations.” 

2. They have remedies to exhaust, so the case is not ripe.*

The government said these terrorists convicted by the Field General Court Martial under the Pakistan Army Act 1952 had an efficacious and adequate remedy under the act, adding that under the act there were a number of steps – including sending a mercy petition to the army chief as envisaged under Section 131(1) of the act, an appeal under Section 133(b) and then sending a mercy petition to the president – that could be taken before the punishment was executed. “This process takes about six months.” 

The document said the six men were convicted only few days ago; therefore, the top court’s stay order was rather premature, particularly when other remedies were yet to be exhausted.

3. The trials were conducted in accordance with legal procedure.

“The procedure provided under the law was duly followed by the military court during the trial of the six militants.” 

4. The Court has not yet ruled on its own jurisdiction, and the Supreme Court Bar Association lacks standing. 

Another objection raised by the federal government was that the Supreme Court’s jurisdiction in the matter was yet to be determined; therefore, the apex court’s order would amount to assumption of jurisdiction. “Moreover, the SCBA is not the aggrieved party and there is a presumption of abstract grounds.” 

5. The prisoners were allowed to mount a defense [see also ¶ 3 above].

The government said the convicts were afforded full opportunity to defend themselves during their trials, as provided under the act. 

6. Military trials are fair. 

The petitioner has failed to show how the provisions of Article 10-A were violated in the military courts, it added. “The apex court has already declared trials by military courts as ‘fair trials’.”

* Note the absence of any reference to judicial review. The remedies noted are post-trial command review and clemency from the Chief of Army Staff and the President.

The Supreme Court resumes its consideration of the 18th and 21st Amendment constitutional petitions today.