ISLAMABAD: The Supreme Court may have upheld the establishment of the military courts by a majority judgement of 11 to six, but the fine print of the judgement reveals that the court has kept with itself the power to review the punishment awarded.

The detailed judgement makes it clear that the apex court has the authority to review any sentence awarded by the military courts if the condition of fair trial is not met.

Know more: Military courts get Supreme Court nod

The Supreme Court also makes it clear that it can review any federal government decision to refer a case to the military manned special court under the Pakistan Army Act, 1952.

“However, the decision to select and refer the case of any accused for trial under the Pakistan Army Act, 1952 as amended and any order passed or decision taken or sentence awarded in such trial shall be subject to the judicial review on the grounds of corum non judice, being without jurisdiction or suffering from mala fide,” said the concluding paragraph of the majority judgement authored by Chief Justice Nasir-ul-Mulk.

Though the order provided no details on how the SC plans to oversee the government or the review procedure, legal experts feel that appeals will not start pouring into the Supreme Court after every sentence awarded by the military court.

“The Supreme Court will only entertain appeals on those cases where there is a glaring evidence of non-adherence or deviation from the rules under the PAA that governs the functioning of the field general court martial,” observed former law minister Ahmed Bilal Soofi.

He pointed out that in the judgement the SC had not asked the parliament to carry out fresh legislation or an amendment to grant the right of appeal. In his opinion, this means that the court will look into the decisions of the interior ministry (which is supposed to forward cases to the special courts led by the military) or the decisions awarded by the special courts only when faced with solid evidence that rules were not followed.

He said the judgement made it evident that the traditional course of appeals “has been kept intact through the judgement” – in other words, appeals against the special courts’ verdicts will go to the high court and then the SC as is the routine in normal cases.

Special Adviser to the Prime Minister on Cabinet Affairs Barrister Zafarullah Khan also agreed with Mr Soofi and said the order given by the chief justice in his majority judgement was a reiteration of the powers of the judicial review enshrined under Article 199 of the Constitution. This article provides the jurisdiction of the high court.

Senior counsel Chaudhry Faisal Hussain was of the view that the Supreme Court through the majority judgement had asserted its jurisdiction over the military courts constitutionally, under Article 199 of the Constitution.

Thus any sentence passed by the military courts would be subject to the judicial review, he explained. 

Published in Dawn, August 6th, 2015

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