Right­ing the wrong

The Pak Banker - - 4EDITORIAL - Reema Omer

LAST week, the Supreme Court sus­pended the death sen­tences of four men con­victed by mil­i­tary courts for ter­ror­ism­re­lated of­fences. The court di­rected the at­tor­ney gen­eral to pro­duce their case records so it could de­ter­mine whether the con­victs had been pro­vided rea­sons for their con­vic­tions and sen­tences.

The Supreme Court's or­der is en­cour­ag­ing. In Au­gust last year, the court let down the cause of hu­man rights and the rule of law when it up­held the le­gal­ity of the trial of civil­ians be­fore mil­i­tary courts - it can now act to en­sure that at the very least, the pro­ce­dures of mil­i­tary courts meet ba­sic stan­dards of fair­ness.

How far the Supreme Court (and, for that mat­ter, high courts) can ef­fec­tively in­ter­vene to en­sure peo­ple con­victed by mil­i­tary courts have been tried fairly de­pends on two fac­tors: first, the le­gal frame­work re­gard­ing the civil­ian ju­di­ciary's ju­ris­dic­tion over mil­i­tary courts' pro­ceed­ings and judge­ments; and se­cond, the will of the civil­ian courts to up­hold the cause of jus­tice, even if it means de­fy­ing the mil­i­tary and the ex­ec­u­tive au­thor­i­ties.

Let's con­sider the ques­tion of ju­ris­dic­tion first. The 21st Amend­ment pro­vides that the Army Act, 1952, un­der which mil­i­tary courts op­er­ate, is ex­empt from the ap­pli­ca­tion of Ar­ti­cle 8 of the Con­sti­tu­tion, which states that laws that vi­o­late fun­da­men­tal rights shall be void. It also pro­vides that con­sti­tu­tional pro­vi­sions re­lat­ing to the in­de­pen­dence of the ju­di­ciary will not be ap­pli­ca­ble in ter­ror­ism-re­lated cases that are tried by mil­i­tary courts.

Fur­ther­more, the Army Act bars civil­ian courts from hear­ing ap­peals against judge­ments de­liv­ered by mil­i­tary courts, and Ar­ti­cle 199 of the Con­sti­tu­tion (re­lat­ing to the ju­ris­dic­tion of high courts) states that high courts may not in­ter­vene in cases where an ap­pli­ca­tion is "made by or in re­la­tion to a per­son … who is for the time be­ing sub­ject to any law re­lat­ing to any of those forces".

How­ever, over the years, courts have chipped away at th­ese ju­ris­dic­tional lim­i­ta­tions in the in­ter­est of jus­tice. As elab­o­rated by decades of ju­rispru­dence, high courts may ex­er­cise their re­view ju­ris­dic­tion un­der Ar­ti­cle 199 of the Con­sti­tu­tion to in­ter­vene in mil­i­tary courts' pro­ceed­ings on the grounds of co­ram non ju­dice (de­cided by a court that lacks au­thori- ty), mala fide (made in bad faith), or lack of ju­ris­dic­tion. The Supreme Court in the 21st Amend­ment judge­ment re­it­er­ated this power to re­view judge­ments on the grounds stated here.

As an il­lus­tra­tion, the La­hore High Court used this power a few years back to com­mute a death sen­tence given by a mil­i­tary court to an army of­fi­cer (in a case un­re­lated to ter­ror­ism) af­ter con­clud­ing that the mil­i­tary judges who sen­tenced him "had not been given the cor­rect le­gal ad­vice as to the quan­tum of sen­tence". Many more ex­am­ples are avail­able.

Other rel­e­vant pro­vi­sions spe­cific to the Supreme Court in­clude Ar­ti­cle 187 of the Con­sti­tu­tion, which gives the Supreme Court "power to is­sue such di­rec­tions, or­ders or de­crees as may be nec­es­sary for do­ing com­plete jus­tice". The Supreme Court has in­ter­preted this to mean that if "dic­tates of jus­tice de­mand", "tech­ni­cal­i­ties and for­mal­i­ties should not fet­ter its power". In ad­di­tion, Ar­ti­cle 184(3) gives the Supreme Court ju­ris­dic­tion over mat­ters of pub­lic im­por­tance that re­late to fun­da­men­tal rights. (The court as­sumed ju­ris­dic­tion over the cases of "miss­ing per­sons" us­ing this pro­vi­sion.)

As can be seen, the con­sti­tu­tional lim­i­ta­tions on the ju­ris­dic­tion of the su­pe­rior ju­di­ciary, par­tic­u­larly the Supreme Court, are them­selves sub­ject to other con­sti­tu­tional con­sid­er­a­tions that al­low courts the flex­i­bil­ity to act to en­sure re­spect for the right to a fair trial, in­clud­ing un­der in­ter­na­tional hu­man rights stan­dards. Re­gret­tably, the su­pe­rior ju­di­ciary has thus far con­strued its re­view ju­ris­dic­tion nar­rowly in ter­ror­ism-re­lated cases, deny­ing the right to ef­fec­tive rem­edy to a num­ber of sus­pects even where gross vi­o­la­tions of fair trial have been al­leged.

Since Jan­uary 2015, high courts have dis­missed pe­ti­tions on grounds of ju­ris­dic­tion even where fam­i­lies of peo­ple con­victed by mil­i­tary courts for ter­ror­ism of­fences have al­leged their sons, fa­thers or hus­bands were tor­tured into 'con­fess­ing' their in­volve­ment in ter­ror­ism; were not given the right to en­gage coun­sel or call and cross-ex­am­ine wit­nesses; were sub­ject to en­forced dis­ap­pear­ance and re­mained ' miss­ing' for many years be­fore be­ing pro­duced be­fore a mil­i­tary courts for trial; were de­nied judge­ments with rea­sons for their con­vic­tion; were chil­dren un­der 18 years at the time of the al­leged of­fence; or were tried in se­cret pro­ceed­ings and held in se­cret de­ten­tion.

The La­hore High Court, for ex­am­ple, re­cently dis­missed a pe­ti­tion made by the father of a sus­pect con­victed and sen­tenced to death by a mil­i­tary court, who claimed his son was forcibly 'dis­ap­peared' in 2010. The court's or­der did not ad­dress the al­le­ga­tion of en­forced dis­ap­pear­ance, but in­stead held the pe­ti­tioner had "failed to es­tab­lish the re­quired el­e­ments so as to re­view the or­der of mil­i­tary court while sit­ting in writ ju­ris­dic­tion…"

In an­other case, it held that it could only in­ter­vene in judge­ments passed by mil­i­tary courts where pe­ti­tion­ers could prove mal­ice or political vic­tim­i­sa­tion - al­le­ga­tions of vi­o­la­tions of fair trial and tor­ture and ill-treat­ment were not in them­selves suf­fi­cient.

In De­cem­ber 2015, the Supreme Court sus­pended the death sen­tences of two al­leged ter­ror­ists con­victed by mil­i­tary courts and re­ferred their cases to the chief jus­tice to con­sti­tute a larger bench to de­cide the emerg­ing fair trial is­sues in the op­er­a­tion of mil­i­tary courts. Two months later, a larger bench of the Supreme Court will fi­nally com­mence hear­ings from Feb 18.

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