ISLAMABAD: Legal experts fear that the military courts, which will be set up once parliament passes the amendments introduced on Saturday, will lead to lenient standards of prosecution, contrary to what is envisioned in the Constitution by sidelining the right to a fair trial and due process.

Some have even gone as far as to suggest that this will shake the very foundations of the legal system and may render an accused “guilty until proven innocent”.

Read: High-level huddle discusses legal strategy for military courts

A law officer told Dawn that the latest amendment being made in the constitution may not be questioned in any court of law, but the constitutional guarantees of a fair trial under Article 10A as introduced in the Constitution through the 18th amendment, may not be strictly adhered to.

Advocate Inamur Rehiem, a former member of the Judge Advocate General branch of the army, told Dawn that the army formation commander of an area will determine who is a “jet-black terrorist” and will give the final nod for trying the accused in the proposed special courts.

Proposed amendment may render an accused ‘guilty until proven innocent’

Thus, military authorities will arrest, investigate, try and then sit in appeal against their own verdict before the final appeal can be made to the Supreme Court, he said, adding that this would be the most dangerous aspect of the entire exercise.

“It’s like instituting an appeal against Caesar before Caesar’s wife,” he deplored.

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It was wrong to suggest that the judiciary had failed because they had handed down convictions to nearly 8,000 death row prisoners, he said, adding that it was not the judiciary’s fault if these sentences were not carried out. He maintained that instead of creating a parallel judiciary, the civil prosecution branch should have been strengthened.

Former vice chairman of the Pakistan Bar Council Mohammad Ramzan Chaudhry fears that through these amendments, the federal government intended to shift the onus of proving the charge to the accused himself.

Also read: Former CJ Iftikhar Chaudhry says military courts 'unconstitutional'

It has hitherto been the duty of the prosecution to prove that the accused being charged was guilty of the offence and that courts usually acquit the accused by giving them the benefit of the doubt when faced with weak evidence, he explained.

Now what they intended to do, he said, was to confer evidentiary value to the opinion of the investigating agency or the confessions of the accused, thus binding trial courts to consider these evidence, which in the normal scheme of things, may not necessarily be admissible in a court of law.

Also read: PM to go ahead with military courts, come what may

He said that it was likely that the JAG branch will appoint special prosecutors to try the accused in the special courts by redefining the Army Act. This is why Article 175 of the Constitution was being amended, to give the impression that it was a judicial decision so that nobody could raise questions against the determination of the special courts headed by military officers.

Similarly, counsel Faisal Hussain Chaudhry said that through the proposed amendment, the military courts would be provided a constitutional role though the sunset clause of two years could be extended depending upon the circumstances.

Also read: Military courts: a wrong move

He was of the view that cases pending before courts established under the Protection of Pakistan Act, 2014, may be shifted to the special courts. But nearly everyone agreed that the accused would have the right to engage private counsel to defend themselves before the special courts.

But there is also an alternative view.

“Currently, we are in a war-like environment where a non-state actor has declared a war on the state and where the state is left with no choice but to respond, especially in the aftermath of the Dec 16 Peshawar attack,” Ahmer Bilal Soofi, an expert on international law, told Dawn.

Laws of peacetime, such as the Pakistan Penal Code, Criminal Procedure Code, Anti-Terrorism Act of 1997 or the Qanun-i-Shahadat Order of 1984 may not be applicable for the prosecution of terrorists. Instead, he said, the law of the war, meaning the Pakistan Army Act of 1952, may be invoked, he said.

Article 245 of the Constitution, which requires the armed forces to defend Pakistan on the orders of the federal government against external aggression or the threat of war, he said, was in fact a legal intimation for the commencement of a conflict and within that context, war crimes committed by the non-state actor warranted a special military tribunal under the army act.

Asked who will determine who is a “jet-black terrorist”, the counsel explained that those waging war on the state and claiming responsibility for terrorist attacks will fall under that particular category, as suggested under Article 256 of the Constitution that prohibits the maintenance of a private army.

Depending upon the structure of the final amendment, he said, the charge against the accused may be framed primarily for waging war under the Protection of Pakistan Act and perhaps sections 6 and 7 of the Anti-Terrorism Act, which define the term “terrorist”.

Published in Dawn, January 4th, 2015

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