New petition seeks right to appeal military cases to Supreme Court of Pakistan

A new round has begun in the ongoing controversy over military justice in Pakistan. A petition has now been filed in the Supreme Court seeking review by that court of all cases decided by military courts, regardless of whether the accused is a civilian or a member of the armed forces. According to this report in The Nation:

“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 article goes on to trace the comparative history of appellate review of courts-martial in Pakistan, India, the UK, other Commonwealth countries, and the United States.

Section 133B of the Pakistan Army Act, 1952 (added in 1992) provides in part:

133B. Court of Appeals for other cases. -- (1) Any person to whom a court-martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within forty days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court-Martial or Field General Court-Martial convened or confirmed or counter-signed by an officer of the rank of Brigadier or below as the case may be, and one or more officer, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals. Provided that where the sentence is awarded by the court-martial under an Islamic law, the officer or officers so designated shall be Muslims; Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff.

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(3) The decision of a Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.

This arrangement blatantly violates the requirements of independence and impartiality.

Pak. Const. § 184(3) concerns the original jurisdiction of the Supreme Court, and provides:

Without prejudice to the provisions of Article 199, the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved have the power to make an order of the nature mentioned in the said Article.