ISLAMABAD - The Supreme Court was moved yesterday to provide one judicial review to all the convicts of military courts whether they are regular members of armed forces or civilians.
“If the judicial review cannot be provided to those victims of the military courts, it will be considered extrajudicial killing through a military judicial system,” says a petition filed by Lt-Col (r) Inam-ur-Rahim advocate under Article 184(3) of the Constitution.
He said all citizens, including those living in cantonments, had a right to be treated justly, fairly and impartially by a forum having judicial mind.
The petitioner said that under the original Pakistan Army Act, 1952, the chief of army staff had nothing to do with the army judicial system except appointing the judge advocate general of army. However, one of the military dictators, got powers through special army orders that sentence of death and dismissal from service of an officer was required to be confirmed by COAS.
He said: “After confirmation by the COAS, a convict gets right to file an appeal before the court of appeals, consisting of the army chief or officers designated by him under Section 133 of Pakistan Army Act.” He questioned which officer in the chain of command could reverse the decision of court martial confirmed by the COAS.
The petitioner said that after the partition of India, by virtue of Section 18 of the Indian Independence Act, 1947, Pakistan Army continued to be governed by the Indian Army Act, 1911, which Britain had enforced to suppress Indians for its colonial needs. However, in 1952, the Indian Army Act was replaced with the Pakistan Army Act, 1952, but with the same colonial spirit.
“The British rulers denied right to appeal to the Indian soldiers and the same denial continued in the Pakistan Army Act even after independence whereas India granted right to appeal to the personnel of armed forces through proper legislation (Armed Forces Act, 2007) before armed forces tribunals, consisting of retired judges of superior courts,” he said.
He stated the US Army got right to appeal in 1950 through enactment of Uniform Code of Military Justice to have direct civilian review over military justice. In 1951, the British Parliament also gave right to appeal to their soldiers before an independent forum, having judicial mind, and it was followed by other Commonwealth countries like Canada in 1952, New Zealand in 1953 and Australia in 1955.
He said Federal Shariat Court, in a suo motu case, had held that non-existence of right to appeal to the convicts sentenced for offences other than Islamic laws was against the injunctions of Islam.
“The federation went into appeal against that judgment before Appellate Shariah Bench of the Supreme Court, which gave the historic judgment (PLD 1989) and declared that barring the right of appeal contained in the armed forces laws was repugnant to the injunctions of Islam and was, therefore, void,” he recalled.
“The apex court gave express directions that necessary amendments shall be carried out in the laws relating to armed forces by January 1, 1989, incorporating the right of appeal against the order passed by the court martial,” he further said.
The right to appeal was guaranteed under Section 133-B of PAA enacted in 1992 as per directions of the FSC which held that when a person was deprived of a source of earning and livelihood, the right to appeal must be mandatory, he concluded.