ISLAMABAD: The Supreme Court on Monday endorsed the convictions awarded by military courts, including death sentences, when it rejected the appeals of 16 convicts involved in acts of terrorism.

“The extraordinary circumstances necessitating the enactment of the 21st constitutional amendment and the Pakistan Army (Amendment) Act (PAA) 2015… and the nature of the offence, the commission whereof the convicts in the instant case were accused was exactly the ‘mischief’ sought to be suppressed by the enactments,” said a 182-page judgement authored by Justice Sheikh Azmat Saeed.

“With the announcement of the judgement there is no impediment in the hangings of these jet-black terrorists, whose executions were stayed by the Supreme Court last June,” Attorney General Ashtar Ausaf told reporters following the announcement of the verdict.

Military officials say that so far, of the over 200 persons whose cases were referred to the military courts, 138 individuals have been tried. Of these, 100 convicts were awarded death sentences, while at least 25 were given life terms.

Judgement holds that judicial review of convictions under Army Act is not the same as an appeal

A five-judge Supreme Court bench, headed by Chief Justice Anwar Zaheer Jamali, had reserved judgement on different appeals heard during the month of June, which included the convicts Ajab Gul, Fazal Ghaffar, Mohammad Ghauri, Tahir Mehmood, Alf Khan, Fateh Mohammad Khan, Qari Zubair, Sher Alam, Aksan Mehboob, Mohammad Arabi, Haider Ali, Qari Zahir Gul, Atiqur Rehman, Taj Mohammad alias Rizwan and Faez Zaman Khan.

At least two of the appellants were awarded death sentences for their involvement in the attack on the Army Public School in Peshawar, where 141 people, including 132 children, were killed. All convicts had pleaded that the right to a fair trial — as guaranteed by Article 10A of the Constitution — had been denied to them as they were neither given copies of the military court judgements, nor were they afforded the opportunity to engage counsel to defend themselves.

Though most in the legal community declared the judgement to be in line with the Aug 5, 2015 verdict upholding the 21st amendment, the former Supreme Court Bar Association (SCBA) president from Quetta, Kamran Murtaza, expressed his displeasure.

“With respect, I would say that I am utterly disappointed with today’s Supreme Court judgement,” he remarked.

Explaining his viewpoint, he said that it appeared as if the apex court had declined to entertain the requests of the accused by accepting the military court verdicts, knowing full well that the rights of a hearing and the engaging of a counsel of their own choice were not afforded to them.

But for international law expert Ahmer Bilal Soofi, the apex court had followed its own directions, given in the 21st amendment case, where it had stated that the state of Pakistan was facing a threat of war and, in that context, the military courts were justified for a limited time.

It appears that the court looked at these rules and the Pakistan Army Act as a criterion for due process, coupled with the failure of the petitioners to successfully prove any mala fide in the convictions, he said.

Similarly, former SCBA additional secretary Mohammad Salaheen Mog­hal said that in the given environment, when terrorism was on the rise and could not be controlled by normal civilian courts and laws, the situation was such that extraordinary measures had to be taken.

“I believe the military courts were necessary to mete out justice to the perpetrators of heinous crimes, therefore today’s judgement was a step towards achieving this goal,” he explained.

In the judgement, Justice Saeed deals with all the appeals separately, but explains in a common verdict that trials conducted by the Field General Court Martial (FGCM) reflected the fulfilment of their mandate and the purpose for which the law was enacted.

The petitioners’ counsel were unable to prove even the semblance of the case that the selection process of cases was tainted, was without jurisdiction or coram non judice (not before a judge), Justice Saeed observed.

The verdict also made it clear that PAA 1952 was immune from challenge on the grounds of being in violation of fundamental rights, including those guaranteed by Articles 10 and 10-A of the Constitution.

The mere allegation that an action has been taken wrongly is not sufficient to establish the occurrence of a mala fide act, and specific allegations of the collateral purpose or an ulterior motive must be made and proved to the satisfaction of the court, the judgement said.

The judgement pointed out that the powers of judicial review, under Article 199 of the Constitution, against the sentences and convictions of the FGCM were not the same as the powers of an appellate court and noted that the convicts did not object to the jurisdiction of the FGCM when granted an opportunity to do so during the course of the trial.

In addition, the judgement said, at no point of time during the trial, or while the matter was before the superior judiciary, were any allegations of specific mala fide or personal bias were made against the FGCM members.

Therefore, the convictions and sentences of the convicts could not be set aside on grounds of mala fides of fact, the judgement said. It also noted that the petitioners had not argued that the FGCM was not duly convened and constituted in terms of the PAA. In these circumstances, the conviction and sentence cannot be said to be coram non judice, the judgement held.

Published in Dawn, August 30th, 2016