ISLAMABAD: Rights activist Asma Jahangir has appealed to the Supreme Court to order retrial in all cases in which military courts have handed down convictions, including capital punishments.
“These trials before the military courts need to be proceeded again after sharing complete evidence and the case record with the accused and also ensuring complete freedom to the accused to engage a counsel of his choice,” argued Asma Jahangir before a five-judge Supreme Court bench, headed by Chief Justice Anwar Zaheer Jamali.
These are the same appeals in which the court had earlier summoned the complete trial record and issued a directive that the same be made available to the petitioners’ counsel in the presence of a military officer at the attorney general’s office.
Although complete case record of some accused was produced before the court, the chief justice ordered that the documents be placed in the judges’ chambers as well.
After the hearing, the bench reserved its ruling on five appeals instituted by Fateh Mohammad Khan, Qari Zubair, Sher Alam, Aksan Mehboob and Mohammad Arabi.
Earlier during two previous hearings, the court had reserved its rulings in nine appeals.
On Monday, Asma Jahangir, who was representing Qari Zubair and Sher Alam, regretted that her clients had been arrested under the Action (In Aid of Civil Power) Regulation 2011 (AACPR) before military courts were established, but their cases were sent to military courts only to “hide malice on the part of security forces because the rule under which the accused had been nabbed had no constitutional protection”.
Explaining further, the counsel referred to the 21st Amendment and argued that although the amendment had given protection to the Pakistan Army Act (PAA), 1952, Pakistan Air Force Act, 1953, Pakistan Navy Ordinance, 1961, and the Protection of Pakistan Act, 2015, no protection had ever been given to AACPR under the amendment.
“We do not know whether any evidence was recorded when the accused were arrested four years ago,” she said.
“We need to see that while forwarding cases to the military courts, the federal government was following Article 25 of the Constitution that ensures equality of all citizens,” the counsel emphasised, adding that while accepting military courts under Article 21 of the Constitution, “we have surrendered our fundamental rights because we wish to see the menace of terrorism come to an end”.
“It is not easy to face trial before military courts,” Asma Jahangir argued, adding that lawmakers who had voted in favour of setting up military courts through the 21st Amendment should be asked whether they would like to be tried by a military court or an ordinary civil court if they were arraigned in any case.
Citing different sections of the PAA, the counsel argued that the law gave every accused the right to engage a counsel who could plead the case before a sessions judge. “We need to see whether the counsel provided to the accused during the trial before the military court was a proper counsel or not.”
Referring to the privilege claimed by authorities in providing evidence and the case record, the counsel said the privilege meant that the information should not be shared with media, but there was no harm in showing the same to the accused and his counsel.
Meanwhile, Additional Attorney General Atiq Shah repeated his argument that no deviation from any law had been made during trial proceedings before the military courts, adding that the issue regarding the federal government’s authority to select cases for military courts was never challenged before the Peshawar High Court.
Moreover, under the PAA Amendment Act, 2015, the federal government enjoys complete authority to transfer any case to military courts.
Published in Dawn, June 21st, 2016