Sunday, January 31, 2016

Retired Pakistani JAG officer explains issues in Supreme Court litigation

The lawyer who sought to persuade the Supreme Court of Pakistan to entertain his pro se petition concerning military court judgments involving both civilians and serving personnel, has cogently explained the situation for The Nation. Here is an excerpt from the article:
Col Inam Ul Raheim, a former Assistant Advocate General Pakistan Army, had filed the petition in person under Article 184 of the Constitution in the Supreme Court last year.
He prayed that at least one judicial review before the apex court may kindly be provided to all the convicts of military courts whether they are regular members of the armed forces or the civilians subjected due to recent amendments in the best interest of justice.
The lawyer shared with The Nation that the writ petitions filed under Article 199 of Constitution are dismissed by the high courts on the ground that they do not have the jurisdiction. On January a division bench of Lahore High Court dismissed three petitions of the persons, awarded death sentence by military court.
Col Inam said: “When the aggrieved persons approach the apex court the judges there also don’t entertain their petitions then in this situation where do they go.” “Who will provide justice to these people,” he added.
“If the judicial review could not be provided to the victims of the military courts then it would be considered extrajudicial killing through military judicial system,” he stated.
In the petition, he stated that during the tenure of ex-COAS [Chief of Army Staff] General (retd) Pervez Musharraf, military convicts were denied trial proceedings although permissible under PAA [Pakistan Army Act] Rule 130 and many were executed and still many are loitering in the jails.
The petition said under the provisions of Army Act arrest/detention is ordered by any superior officer as well Commanding Officer (CO) and thereafter under PAA Rule 13 the investigation is also conducted by the same CO of the accused.
It states that the same CO, who was investing officer till then, now adopts the role of judge by disposing of case summarily under PAA Section 23 read with PAA Rule 16 and 17, and can award minor punishments up to 28 days rigorous imprisonment.
The petition said during the summary trial an accused is assisted by an officer known as friend of accused but friend of accused can neither address the court nor argue the case. He can only sit with the accused and advise him during the trial. 
The accused can produce defence witnesses but normally nobody dares from the unit to become the defence witness as the investigation and charges are framed by the commanding officer.
The proceedings are forwarded to commander for confirmation and he under PAA Section 123, confirms the proceedings .However he has two options, first he may confirm the proceedings or he may send back the proceedings to the court for revision under PAA Section 126 read with PAA Rule 57which could be done only once.
The petition said that only after confirmation by the COAS, the convict gets a right to file an appeal before Court of Appeals consisting of COAS or officers designated by him under PAA Section 133. It said who would be an officer in the chain of command who would reverse the decision of court martial confirmed by the COAS.
The petition said that the persons subject to Army Act are also citizens of this country and have right to be treated justly, fairly and impartially by a forum having judicial mind and in accordance with the constitution.
Plainly, Col. Raheim has a broad systemic challenge in mind. The court held that he lacked standing, but judging by the information he provided to The Nation, he'll be back, this time presumably with one or more clients in tow.

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