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Military courts’ constitutional life to expire in January

Updated October 17, 2016

With over two months left in the constitutional two-year life of military courts set up to try ‘terrorists’, the Inter Services Public Relations (ISPR) announced on Oct 13 that Chief of Army Staff General Raheel Sharif had confirmed death sentences of 10 ‘hardcore terrorists’ thus raising the number of such convicts awarded capital punishment by military courts to 112.

These courts have so far convicted 116 militants of which four were sentenced to life imprisonment and the rest 112 awarded death penalties. According to news reports, around a dozen of these convicts have been executed.

The ISPR is the only source of releasing information about these convictions and the offences in which these convicts were involved.

Following the massacre of Army Public School (APS), Peshawar, on Dec 16, 2014 the Parliament had amended the Constitution of Pakistan through the Constitution (21st Amendment) Act, 2015 as well as Pakistan Army Act, 1952 allowing creation of military courts for trying terrorists belonging to any terrorist group or organisation using the name of religion.

The said two Acts were published in the official gazette on Jan 8, 2015. The Constitution (21st Amendment) Act, 2015, provided that this Act shall remain enforced for a period of two years from the date of its commencement, which meant after completion of two years the military courts trying terrorists using the name of religion would cease to exist unless the Parliament makes further amendment in the Constitution.

The Supreme Court had on Aug 3, 2015 validated the Constitution (21st Amendment) Act by dismissing several constitutional petitions challenging its validity. The court in its judgment had also explained the situation wherein the high courts could exercise powers of judicial review in cases of convicts of the military courts.

While several of these convicts or their close relatives had tried their luck in the superior courts challenging their convictions by military courts, so far they failed in getting relief.

The Supreme Court on Aug 29, 2016 dismissed appeals of 16 convicts of military courts. Review petitions of those petitioners have now been pending before the apex court. Most of those appeals had originated out of judgments of Peshawar High Court, which had so far dismissed several petitions filed against convictions by the military courts.

Several of the points raised by counsels for the petitioners were common in nature. They had contended that the convicts in these cases had been subjected to a secret trial without access to legal assistance, having been deprived of the right to be represented by a legal practitioner of their own choice in violation of rights so guaranteed by Articles 10 and 10A of the Constitution of Pakistan. They had stated that the procedure adopted and followed denuded the proceedings of the requirements of a “fair trial” and “due process”.

It was contended that the convicts were deprived of their right to produce evidence in their defence or to cross-examine the prosecution witnesses. It was added that sufficient time and opportunity to prepare the defence was not provided in terms of Rule 23 of the Pakistan Army Act Rules, 1954. The counsels had added that the trials were conducted more than three years after the alleged occurrences in violation of the bar contained in Section 91 of the Pakistan Army Act, 1952, hence, the said trials were without jurisdiction. They added that the convicts were held in illegal detentions for many years.

A deputy attorney general appearing for the federal government had rebutted their arguments by contending that the convicts and the offences for which they were tried in each of the cases at hand were subject to the Pakistan Army Act, hence, the convictions could not be challenged before the high court in exercise of its jurisdiction conferred under Article 199 of the Constitution.

He stated that each and every convict was given full opportunity to defend himself. He added that the option to engage a legal practitioner of their own choice was afforded and upon failure to take advantage of such option, an officer was deputed to defend them in terms of the Pakistan Army Act and Rules framed thereunder.

While rejecting all the 16 Leave to Appeal Petitions, the Supreme Court bench ruled about each of the case that the examination of the record reveals that the Field General Court Martial (FGCM) was constituted and convened in accordance with the provisions of the Pakistan Army Act and the Rules framed thereunder. Hence, the conviction and sentence do not appear to be coram non judice.

The bench ruled that it appears from the record that the convict, being subject to the Pakistan Army Act, was tried for the offences triable by FGCM. No personal bias of any member of FGCM against the convict has been established nor was the proceedings conducted mala fides.

The bench has ruled that no illegality in the conduct of the trial exists. The law and the rules, more particularly those protecting the rights of the accused, were adhered to.

The case of one of the convicts, Haider Ali, was distinguishable from others as his mother, Bacha Laiqa, the petitioner, had claimed that her son was a 10th grade student at Malakand High School, Sersenai, Kabal tehsil in Swat when he was handed over to the security forces by his family on Sept 21, 2009. She stated that his date of birth was Dec 1, 1994, and was below 15 when he was arrested. She had also produced records of different schools in this regard.

However, neither the Peshawar High Court, which had dismissed her writ petition, nor the Supreme Court accepted that he was a juvenile offender.

One of the counsels appearing for convicts said that the superior courts had rejected their plea that the convicts were not provided opportunity to engage a legal practitioner of their choice and had accepted the contention of the deputy attorney general that they were provided the said opportunity, but they had declined to avail it. He said it was a strange coincidence that none of the over 100 convicts had decided to engage a private counsel.

Published in Dawn October 17th, 2016