ISLAMABAD:19th July Report of Dawn newspaper

Two ex-servicemen and four civilians, who were sentenced to death by the Field General Court Martial in 2005 for two assassination attempts on former president Gen (retd) Pervez Musharraf, moved the Supreme Court here on Monday requesting it to direct the government to provide one right of appeal against the decision of the military court by amending relevant rules.

Advocate Mohammad Ikram Chaudhry filed separate petitions on behalf of Arshad Mehmood, former Naik in the Pakistan Army, and Nawazish Ali, ex-chief technician in the Pakistan Air Force, and civilians Ghulam Sarwar Bhatti, Zubair Ahmad, Mushtaq Ahmad and Ikhlas Ahmad.

The army personnel and civilians were arrested for their alleged role in suicide attacks on Gen (retd) Pervez Musharraf on Dec 14, 2003, at Jhanda Chichi Bridge in Rawalpindi and on Dec 25, 2003, in front of a petrol pump also near Jhanda Chichi.

After in-camera hearing, the Field General Court Martial awarded death sentences in July 2005 to the ex-servicemen and civilians under the Army Act, 1952, which were later confirmed by the vice chief of the army staff.

The petitioners have pleaded before the apex court to recommend to the government to amend the Army Act, 1952, Pakistan Air Force Act, 1953, and the Pakistan Naval Ordinance, 1961, to provide at least one opportunity of appeal against the decisions of the army tribunal, either before the Supreme Court or before an independent military tribunal as was done by the Indian government in 2007 through an appropriate legislation and as in practice in countries like the US, UK and Canada.

They have also requested the court to ask the federal government to legislate for independent military tribunals and finally to re-examine all case laws from F.B. Ali to this day by constituting a larger bench of the Supreme Court and also re-examine the sentences awarded to them in the light of the presidential reference in the Zulfikar Ali Bhutto case.

The federal government through secretaries of law and defence are respondents in the case.

The petitioners contended that the amendments made during the Pervez Musharraf regime in three military laws to bring civilians under the jurisdiction of military tribunals were against the Constitution and, therefore, liable to be struck down on the touchstone of Article 8 of the Constitution which declared as void all laws inconsistent with or in derogation of fundamental rights.

They pleaded before the court to declare Section 133 of the Army Act, 1952, as ultra vires of the Constitution because it negated a number of constitutional provisions like Article 2A (Objective Resolutions to be part of the Constitution), 4 (right of individuals to be dealt with in accordance with law), 5 (loyalty to State and obedience to Constitution and law), 9 (security of persons), 10 (safeguards as to arrest and detention), 10-A (right to fair trial), 25 (equality of citizens), denial of rights under Article 175 (establishment and jurisdiction of courts) and 203 (high courts to superintendent subordinate courts).

The petitioners contended that the said military laws denied fundamental rights of fair trial and due process through independent and impartial tribunals.

They have raised questions whether a subordinate enactment expressly or widely worded can take away the jurisdiction of superior courts in civil and military offences, whether Section 133 of the Army Act is in contradiction with the provisions of the Constitution and whether or not under Article 184(3) of the Constitution (apex court’s jurisdiction to enforce fundamental rights) the Supreme Court enjoys the authority to look into the vires of any law to do complete justice.
http://www.dawn.com/2011/07/19/right-to-appeal-against-military-court-verdict-sought.html