Taking up a dormant petition against the Army Act 1952, the Supreme Court on Friday issued notices to defence authorities and the attorney general of Pakistan for the last week of August.
A three-judge bench of apex court – headed by Chief Justice Iftikhar Muhammad Chaudhry – will take up the 13-year-old petition after the summer recess. The petition was filed by Colonel (retd) Muhammad Akram in 1999.
The petitioner – who served in Pakistan Army’s Judge Advocate General (JAG) branch for over 30 years – believes that some clauses of the Army Act are contrary to the Constitution and need amendment.
Constitutionally, a civil court is bound to cite reasons while sentencing. On the contrary, military courts rely on one-liner, “the charge has been proven”, which is unfair and unconstitutional.
Major Shahjahan, the deputy assistant advocate general of the JAG branch, told the court that the Army Act does allow a fair trial to the accused. If findings are not announced before confirmation, how can one file an appeal and get a fair trial, asked the chief justice. The petitioner maintained that eliciting a statement from the accused on oath during court martial and using it against him as evidence is contradictory to the Qanoon-e-Shahadat (the law of evidence). The Constitution doesn’t allow eliciting a statement on oath from the accused under duress, he added.
“Section 31 of the Army Act allows the accused to submit a petition against the findings or decision of a military court,” Col Akram said. “The finding(s) and sentence of all military courts except the summaries are required to be confirmed.”
Justice Jawwad S Khawaja said defence authorities should also consider article 10A of the Constitution that gives the due process right to every citizen.
Col Akram said that military authorities wrongly interpret article 44 of Qanoon-e-Shahadat, which says the accused shall be liable to cross examination.
Published in The Express Tribune, July 21st, 2012.