THE legal debate about whether specified heinous crimes committed by civilian militants in the name of religion or sect can be tried by court martial or military tribunals was decided by the Supreme Court in favour of court martial in the ‘District Bar Association case’ (2015). So, this debate about the constitutionality of court martial of civilian militants is over until the 21st Amendment expires in January 2017.

Recently, while deciding 16 appeals regarding the death sentences awarded to 16 civilian militants by the field general court martial (‘court martial’), the Supreme Court in the ‘Said Zaman Khan & Others’ case has now also examined and decided the equally critical issue of whether the actual trials conducted by the court martial of these civilian militants were in accordance with law and justice and especially with the requirements of fair trial. In short, these findings show as discussed below that we live in interesting but dangerous legal times.

Silver lining: Although the District Bar Association case upholding the constitutionality of the court martial of civilian militants was disappointing for a section of the public, the silver lining in the verdict was the powerful majority judgement authored by Justice Sheikh Azmat Saeed who laid down two powerful principles. Firstly, “trials of civilians by court martial are an exception and can never be the rule”. Secondly, the Supreme Court and high court had the judicial power to review any judgement or sentence of court martial. In short, it is the superior courts, and not the chief of army staff or court martial who will have the last and final judicial say.

In both, the District Bar Association case and in the recent Said Zaman Khan & Others case, Justice Saeed went further and laid down the following five precise and clear grounds to challenge any judgement or sentence of court martial.

Can military trials be fair when the accused can’t even engage a civilian lawyer of his choice?

Firstly, the court martial was set up or constituted in violation of the law, and/or the person being tried, and/or the offence for which he is being tried, doesn’t come within the legal jurisdiction or power of court martial. In short, the proceedings are without jurisdiction.

Secondly, persons/members forming part of the court martial have delivered the judgement or sentence out of bias or bad faith or ulterior motive. In short, the proceedings are factually mala fide.

Thirdly, the judgement or sentence is a wilful act of wrongfulness without reasonable or probable justification and blatantly illegal. In short, the judgement can be challenged on grounds of gross violation of the law without the need to prove actual mala fide intention ie mala fide in law.

Fourthly, the judgement or sentence is based on perverse evidence or no evidence or insufficient evidence, or the conclusions drawn are wholly unreasonable and improbable.

Fifthly, the decision to select a particular civilian militant to be tried by court martial (as opposed to other similar civilian militants) could also be challenged on the grounds of being unfair and unreasonable.

With these five grounds of challenges against court martial judgements, it appeared, at least in theory, that there were powerful legal and judicial safeguards against court martial of civilians. Sadly, in practice this theory has not lived up to expectations.

Perfect convictions: An examination of the record of the trial proceedings of the court martial of these 16 persons, all of whom have been given the death sentence, is revealing, perhaps unique in the annals of criminal jurisprudence. Uniquely, the trial record of the 16 in its key aspects is remarkably identical — perhaps cyclostyle is the right word.

Firstly, all 16 persons voluntarily pleaded guilty not once but twice.

Secondly, all made judicial confessions before a judicial magistrate and none of them, retracted their confessions later.

Thirdly, none of the 16 persons wanted a civil defence lawyer of their choice and preferred to be defended by a defending officer of the armed forces. This is especially surprising considering that they hired lawyers to file petitions before the high court and appeals before the Supreme Court challenging the court martial judgement.

Fourthly, the 16 persons did not object to the jurisdiction or members of the court martial. Fifthly, all declined to produce any evidence in their defence.

Either this is an example of the ‘miracles’ of military justice or there is a more earthly reason for such perfect convictions. Presuming the trial record is correct, the main reason for such harmonious military trials, with the accused persons agreeing to everything and anything, is the atmosphere of coercion ie during the trials, the accused persons are in the custody of the military or intelligence and their trials are basically secret. This is obvious from the fact that the relatives of the 16 persons (without exception) found out about the court martial proceedings only after the death sentence was awarded and mainly through newspapers; one family received the news via an anonymous caller.

Can such trials be considered fair especially when the accused can’t even engage a civilian lawyer of his choice? I mention this with sadness but with a sense of responsibility that these aspects should have been considered by the Supreme Court especially since all these persons were under death sentences. Even in the darkest days of the Zia era, it was our superior courts that saved numerous people from the unfairness of court martial sentences.

Two dangerous legal phenomena are emerging. Firstly, our brave officers and soldiers who have seen their fellow officers and soldiers being killed, often brutally, are as an institution in no position to do dispassionate justice. In such situations, revenge takes precedence over justice.

Secondly, the Said Zaman Khan & Others judgement mentions the “extraordinary circumstances necessitating the enactment of the 21st Constitutional Amendment Act” 16 times in the judgement which clearly shows the tremendous responsibility and pressure the courts feel to provide justice against militant violence. But paradoxically, upholding these unfair court martial proceedings leads to the further militarisation of anti-terror law in Pakistan which contains within it the implied acceptance of the failure of the civilian criminal justice system.

The writer is a lawyer.

Published in Dawn, September 5th, 2016