More details on yesterday's hearing in the Supreme Court of Pakistan

Asma Jahangir

We learn important details from The Express Tribune's coverage of yesterday's proceedings in the Supreme Court of Pakistan:

Asma Jahangir, the counsel for the convicts, pleaded [before] the apex court that there has to be a retrial of all convicted persons after allowing them to engage counsels of their choice. The bench also expressed its dissatisfaction over the procedure adopted by the military courts for giving the right of counsel to an accused person.

The chief justice has already asked the additional attorney general that so far they (judges) are not satisfied by the submission of the record regarding the issue of engaging a counsel of choice by convicts. He said in some cases the question of providing a defence counsel was asked, but in many other cases it was not. 

During Monday’s hearing, Asma Jahangir, appearing on behalf of the convict Sher Alam, complained that lawyers were not given access to the record of trial. She argued that they don’t know under what law her client was taken into custody and whether due course of law was provided. She said although under the 21st Amendment, army, naval and air force laws were given protection from civil scrutiny, this immunity does not arise in the Action in Aid of Civil Power Regulation 2011 under which the convict was initially arrested. 

She again contended that people were illegally arrested under the regulation, and later the constitutional amendment was introduced to hide the illegal[it]y of security forces. 

The noted human rights activist questioned: how did the federal government select cases of a few persons, who were in internment centres, and why did it not refer other cases to military courts? She said it was a violation of Article 25, Article 10A of the Constitution and rules 86, 87 of the PAA [Pakistan Army Act] 1954. 

She argued that the 21st Amendment and the Army (Amendment) Act 2015 PAA did not undermine, suspend or curtail the effect of fundamental rights, guaranteed by the 1973 Constitution. She said Article 10A came into being after a long struggle and many negotiations. . . .

Jahangir said lawyers were not given access to the record of the trial of their clients. “I plead to show us the record.”

Even under a restrictive view of the scope of judicial review of courts-martial, it is impossible to see how defense counsel can provide meaningful assistance without access to the record of trial. It remains to be seen whether Ms. Jahangir will gain any traction with her arguments, but from a distance they seem substantial.