Sunday, May 17, 2015

Limited review of courts-martial by Supreme Court of Pakistan

A two-judge bench of the Supreme Court of Pakistan has upheld capital sentences adjudged by a field general court-martial (FGCM). This account in The Express Tribune reveals the limited scope of civilian review of courts-martial under Pakistani law:
Authoring the apex court’s judgement on Saturday, Justice [Ijaz Ahmed] Chaudhry said the high court had no jurisdiction with regard to the decision of the FGCM. 
“It is also a settled law that the superior courts can interfere in the orders of the authorities relating to the armed forces if the same are found to be either result of mala fide (in bad faith) or the same are coram non judice (not before a judge),” read the verdict. 
“We have not been able to find out anything mala fide on the part of the prosecution or authority. Neither is the order passed by the field general court martial a case of no evidence nor is the evidence led by the prosecution insufficient. 
There is sufficient material available to prove the guilt of the appellants. In absence of anything mala fide on the part of the prosecution, the conviction and sentences awarded to the appellants by the field general court martial cannot be stamped to be coram non judice.” 
The court rejected the arguments of the counsels for the petitioners that the applicants were not given an opportunity to consult legal practitioners of their own choice. 
The bench also observed that it was on record that the appellant was represented by a defending officer and in the writ petition before the high court it had been specifically mentioned that the appellant could not afford engaging a counsel due to his sheer poverty. 
“In such a situation the apprehension of the learned counsel is misconceived,” added the top court’s judgment.
Postscript. With thanks to a reader in Pakistan for the citation, the decision in Mushtaq v. Secretary, Ministry of Defence and Hussain v. Secretary, Ministry of Defence, C.A. Nos. 718 & 1366 of 2007 (Pak. Apr. 1, 2015), can be found here. Yes, it does seem that the court took eight years to decide these cases (with a seven-page unanimous opinion -- roughly one page per year). From the standpoint of the petitioners, who face execution, the passage of time is a good thing. From the standpoint of the reasonably prompt administration of appellate justice, not so much.

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