Saturday, June 10, 2017

Behind the times in Pakistan

Dawn reports here on a Supreme Court of Pakistan case of some interest. The case was a challenge by two former soldiers to their fraud conviction by Field General Court-Martial. The court-martial had acquitted them, but the confirming authority sent the case back for reconsideration. The court-martial took no further evidence in response but simply rendered a new judgment, convicting the men. The decision is not yet on the Supreme Court's website, but Dawn provides some details:
During the hearing, retired Col [Muhammad] Akram, appearing on behalf of the petitioners, argued that the FGCM had not recorded any additional evidence when the case was remanded back to it. Therefore, it erred in law in convicting the appellants on reconsideration of the same evidence on the basis of which they were earlier acquitted. 
The counsel argued that under the PAA [Pakistan Army Act], the confirming officer was required to give his views on the evidence drawing the attention of the court to a particular point they had failed to appreciate. But having failed to give his views on the evidence, the confirming authority wrongfully exercised its powers under the act. 
The counsel also argued that in terms of the Army Regulations No. 277, the FGCM could be censured if it did not record a conviction on remand by the confirming authority. Thus the FGCM acted under the fear of censure in convicting the appellants, he implied.
But the judgement authored by Justice Ijaz-ul-Ahsan, one of the members of the three-judge SC bench, held the argument that the FGCM could be censured if it did not record a finding, to be unique, unsubstantiated and devoid of merit.
Moreover, it was also not mandatory under the law for the FGCM to record additional evidence in revision and that additional evidence was required to be recorded only if it was so directed by the confirming authority, the judgement said.
“In the absence of a finding that the conviction and sentence was coram non judice, without jurisdiction or mala fide, we are not persuaded to reappraise evidence or examine its sufficiency in exercise of our jurisdiction under Article 185(3) of the constitution,” Justice Ahsan observed. The impugned judgement of the high court was well reasoned and entrenched in the principles of law settled by the SC in its different judgements, he added.
Pakistan retains the old British military justice model, long since abandoned in Britain. Passing over the court-martial's lack of independence, the slow pace of this case is shocking. The chronology is not completely clear, but it seems the offenses were committed in 1985, the court-martial was conducted (including remand and reconsideration) in 1991, the Lahore High Court denied collateral review in 1999, Supreme Court review was not sought until 2008, and it took that court another nine years to decide the case.

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