Saturday, September 3, 2016

Khan v. Federation of Pakistan

Having now studied the recent decision of the Supreme Court of Pakistan in Khan v. Federation of Pakistan, a few observations are in order. The decision upholds 16 capital cases in which civilians were tried by Field General Courts-Martial under the soon-to-perhaps-expire 21st Amendment to the Constitution of Pakistan.
  • The core problem with the case is that the train left the station last year when the court upheld the 21st Amendment in District Bar Ass'n, Rawalpindi v. Federation of Pakistan (PLD 2015 SC 401).
  • The opinion says nothing about the proceedings before the Army Court of Appeal. Were there deficiencies there? Were the petitioners afforded the right to lawyer counsel there? Did they waive it? If they were afforded non lawyer representation on appeal, was that representation effective?
  • The scope of collateral civilian review by the High Courts and the Supreme Court -- limited as it is under Khan to claims of mala fide (malice) and coram non judice (lack of jurisdiction) -- is so narrow that it makes that review a mockery.
  • In each instance, the petitioner is said to have never sought civilian defense counsel. One would think this would leave the door open to claims that the non lawyer defending officers did not provide the effective assistance of counsel, which Pakistani law presumably demands. It is not apparent from the Supreme Court's decision that the effectiveness of the defending officers was ever challenged, either in general or with particularity.
  • The decision takes at face value the petitioners' confessions. Were the confessions challenged on grounds of involuntariness?
Comments and further reactions are welcome. Real names only, please.

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