Pakistan

Military courts: Legal experts fear denial of right to fair trial

Most of judicial reviews against rulings of military courts are based on Article-10A

Hasnaat Malik January 02, 2016

PHOTO: AFP

ISLAMABAD: After the passage of 21st constitutional amendment that allows establishment of military courts to try hardcore terrorists, legal experts have raised questions over the ‘denial of right to fair trial’ guaranteed by Article-10A of the Constitution.

It has been learnt that most of the judicial reviews against the sentences awarded by the military courts are based on the right to fair trial under Article-10A and coram non judice (not before a judge), a legal term used to indicate a proceeding held outside jurisdiction.

According to judicial reviews filed by human rights activist Asma Jahangir on behalf of Haider Ali and Qari Zahir, the two death-row prisoners, the military court did not allow the convicts to hire counsels nor did it provide any copy of the verdicts which amounts to violation of Article-10A.

Bacha Laiqa, the mother of Haider, and her husband found out through media reports, after six years of their son’s arrest that he was imprisoned in the Timergara Jail, in Lower Dir district, and was sentenced to death by a military court, stated the petition.

Divided opinion

Legal experts are divided on whether or not the top court should intervene in the military court proceedings and protect the rights to fair trial to the alleged militants.

Supreme Court Bar Association (SCBA) President Ali Zafar while talking to The Express Tribune stated that the top court itself has approved the functioning of the military courts, therefore, it cannot examine violation of Article-10A.

He also said that the military courts have been established on the desire of the nation. “The country is in a state of war, wherein, establishment of the military courts is the need of the hour,” he said. The SCBA president, however, urged that only hardcore terrorists should be tried in the military courts.

Former deputy attorney general Raja Abdur Rehman says the Constitution has given protection to the fair trial and if Article-10A is being violated the top court must take notice, adding that judges are under oath to protect the Constitution.

SCBA ex-president Kamran Murtaza also believes the top court must take notice of violation of Article-10A of the Constitution. He states that principals cannot change in any circumstances.

Published in The Express Tribune, January 3^rd, 2016.

COMMENTS (1)

ishrat salim | 8 years ago | Reply Notwithstanding establishment of military court, it seem that it has become a fashion to call us being in a state of war without promulgating " emergency " in the country which goes against the constitution. No one including the PM, the President or the Army Chief can declare that " we are in a state of war " without declaring " emergency " as per constitution, in the country, so is this not itself a controversial issue ? No one discusses on this aspect, but just gives a sweeping statement that we are in a state of war. Declaration of " state of war " brings in many other conditions which no one in the civilian govt can even imagine & no one dares to go to court. While establishment of " military court " was challenged, why no one challenges that declaration of being in a state of war itself is contrary to the article of constitution. No wonder we have once again proved ourselves as being literally bankrupt.

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