ISLAMABAD, Feb 25: The increasing number of people, accused of terrorism, who have been tried under the Pakistan Army Act (PAA) of 1952 has led to some people suggesting that changes need to be made to this law.
Former military men are among those who say that the act has been repeatedly amended and strengthened by military dictators since its inception and now should be changed to allow, among other things, a right of appeal in the High Court or the Supreme Court.
The Pakistan Ex-servicemen Society (an association of around 40,000 retired army persons) passed a resolution in September urging that army officials tried under the act be given the right of appeal in the High Court.
The resolution also said the Supreme Court should re-hear the cases of those army officers and soldiers who were removed during Gen (retd) Pervez Musharraf’s tenure through administrative orders.
A spokesman for the society told Dawn that it planned to take up this matter with the army chief and parliamentarians as this ‘misuse’ was damaging the repute of the army and bringing a bad name to the country.
According to retired army officers, former presidents Ayub Khan, Gen Ziaul Haq and Gen (retired) Pervez Musharraf expanded the scope of the PAA.
Advocate Col (retired) Inamur Rahim, who has served in the Judge Advocate General branch (the legal wing of army) from 1996 to 2007, told Dawn that Ayub Khan ensured the army act was effectively “above” the law. Explaining this, he said under section 16 of the act, the federal government, on the recommendations of Chief of Army Staff (COAS), could terminate the services of a military officer or jawan, but these “recommendations” could not be challenged in court.
Officers, senior and junior, were sent home without any explanation as no government turned down the COAS’s recommendations. Lt Gen Tariq Pervez, a former corps commander of Quetta, was the first victim of Gen Musharraf under the said clause, during the last days of Nawaz Sharif’s second stint in government. His ouster came after rumours that the crops commander met Mr Sharif, Rahim pointed out.
Second, Rahim said the PAA allows the punishment of an accused convicted by a military court to be enhanced by a military appellate court under section 133 B (2)(f), which was introduced by Gen Zia.
This is unprecedented in the world. Interestingly, even the Navy and Air Force court of appeal cannot enhance the punishment under their respective acts.
Rahim told Dawn that during the Musharraf regime, two civilians, Rana Naveed and Amir, who were involved in an attack on Musharraf, were given life imprisonment in Sept 2004; the military appellate court converted this into death sentence in early 2005.
Third, Col Rahim also claimed that Gen Zia gave the COAS the authority to allow or refuse to provide the trial proceedings documents of a military court to the accused. Refusal became the norm during the Musharraf era.
Recently, on Feb 16, the Lahore High Court (LHC) Rawalpindi bench was told that the counsel for five men convicted of carrying out the GHQ attack would not be provided for a copy of their trial proceedings. Chief of Army Staff Ashfaq Parvez Kayani sent a letter stating this refusal after which the men’s appeal was dismissed.
During the last five years, the superior judiciary has dismissed around 40 appeals against the military courts’ decisions.
Fourth, Rahim explained that clause 3 of the article bars the High Court from taking up matters related to civilians or military men who are subject to the army act as it said: “An order shall not be made in relation to a person who is a member of the armed forces, or for the time being subject to any law relating to any of these forces.”
The Supreme Court recently turned down the cases of Lt Col Ghaffar and Lt Col Khalid Abbasi, who were detained for more than two years under Musharraf.
According to him, this ouster clause was introduced by Ayub Khan as he did not want his order or instruction to be challenged in court.
Ironically, he added, former prime minister Zulfikar Ali Bhutto also retained this clause in the 1973 Constitution and later fell victim to it when the Sindh High Court (SHC) refused to hear his petition when the Pakistan Peoples Party challenged the actions of Gen. Zia. The court dismissed the petition because of clause 3 of article 199.
Col Rahim is not the only one who feels that the law needs to be changed.
Col (retired) Sajjad Akhtar Malik, secretary (legal) to ex-servicemen’s society, suggested a fifth power that needed changing - section 2(1)(d) that allows intelligence agencies to arrest civilians.
He also suggested that a commission comprising parliamentarians, senior army officers, judges and lawyers should be constituted to review the army act and suggest amendments.
Justice (retired) Wajihudin Ahmed was of the opinion that the act could be changed by parliament to ensure the protection of fundamental rights.
THE OTHER SIDE: However, not all former military officers agree with this.
According to Brig (retired) Wasif Khan Niazi, who had served as judge advocate general (JAG) and pursued the case of Maj Gen Zahirul Islam Abbasi, the army act is a justifiable law.
In his opinion, the only amendment needed was to allow an appeal against the decision of a military appellate court in the Supreme Court.
He referred to the case of Maj Gen Abbasi, who was accused of plotting to overthrow the civilian government of former prime minister Benazir Bhutto in 1995 and plotting the assassinations of Ms Bhutto and, the then army chief Abdul Waheed Kakar.
Niazi pointed out that while hearing the appeal of Gen Abbasi against his conviction, Justice (retired) Saeeduz Zaman Siddiqui of the Supreme Court had observed that the ouster clause was not applicable to the SC. However, the other two judges, Justice (retired) Bashir Jahangiri and Justice (retired) Mukhtar Ahmed Junejo, adjudged that SC was barred from hearing such appeals.
Col (retired) Malik Mohammad Akram, however, believed that all the provisions in the army act were not contradictory to fundamental rights.
Despite repeated attempts and a written request, officials of the Inter Services Public Relations did not respond to requests for the military’s point of view on this story.