‘Conflicting with Constitution’: Army Act provision can be cancelled, says apex court
Asserts provision that no reason needs to be provided for court martial is discriminatory.
ISLAMABAD:
The Army Act came under scrutiny on Monday during a Supreme Court hearing of a petition filed against the law for its provision that no reason needs to be provided for a court martial once it has been issued.
The apex court observed that this provision, known as a non-speaking order, conflicts with Article 10-A of the Constitution and can be cancelled on the basis of Article 25.
A three-member bench headed by the chief justice directed the army’s counsel to seek advice from the defence ministry in order to remove this legal flaw, and then to inform the court.
The court stated that although it could cancel the relevant law under Article 25 by holding it discriminatory, the institution concerned can also remove the flaw my making necessary amendments.
Petitioner Colonel (retd) Akram told the court that anyone convicted under a court martial is neither provided a copy of the decision, nor the reasons for the decision – and that this system creates hurdles in filing an appeal. He appealed to the court to direct the army to amend the relevant law under basic constitutional rights.
Akram also informed the court that such amendments have already been made in the Navy and Air Force acts and, therefore, there was no justification for not making such an amendment in the Army Act.
The army’s lawyer had pleaded that the Army Act was older than that for the other armed forces and that if the request of the petitioner was granted, as much as half of the act would have to be revised.
Justice Gulzar Ahmed said that the trial procedure has changed after the inclusion of Article 10A in the Constitution and transparent trials and proceedings have become a basic right now. Anything that violates this right will become null and void.
The army’s counsel sought time to seek advice from the relevant authorities and said that a detailed discussion would be held at the defence ministry. The court, however, advised him to seek initial advice from his client and inform the court today (Tuesday) as to whether the army was in agreement over making an amendment to the law.
Kayani’s extension challenged
Meanwhile, a former army officer, challenging the legality of the extension of Ashfaq Parvez Kayani’s service, appealed to the Islamabad High Court (IHC) to hear his petition on an urgent basis, in view of the army chief’s recent ‘political statements’.
The application for an early hearing is to be presented before the IHC today.
Petitioner Colonel (retd) Inamur Rahim, who is also the convenor of the Ex-servicemen Legal Forum, filed an application for an early hearing of the Intra Court Appeal (ICA) against the extension of Kayani’s service after he crossed the age of superannuation.
The petitioner maintained that Gen Kayani, assuming himself to be a public servant on the basis of an illegal extension of service beyond the age of 60 years, issued a political statement, which disturbed “the whole society”. He added that had he been subject to the Army Act, he would not have dared to issue a statement of that kind in violation of the oath of a legitimate chief of army staff. (WITH ADDITIONAL REPORTING BY OBAID ABBASI IN ISLAMABAD)
Published in The Express Tribune, November 13th, 2012.
The Army Act came under scrutiny on Monday during a Supreme Court hearing of a petition filed against the law for its provision that no reason needs to be provided for a court martial once it has been issued.
The apex court observed that this provision, known as a non-speaking order, conflicts with Article 10-A of the Constitution and can be cancelled on the basis of Article 25.
A three-member bench headed by the chief justice directed the army’s counsel to seek advice from the defence ministry in order to remove this legal flaw, and then to inform the court.
The court stated that although it could cancel the relevant law under Article 25 by holding it discriminatory, the institution concerned can also remove the flaw my making necessary amendments.
Petitioner Colonel (retd) Akram told the court that anyone convicted under a court martial is neither provided a copy of the decision, nor the reasons for the decision – and that this system creates hurdles in filing an appeal. He appealed to the court to direct the army to amend the relevant law under basic constitutional rights.
Akram also informed the court that such amendments have already been made in the Navy and Air Force acts and, therefore, there was no justification for not making such an amendment in the Army Act.
The army’s lawyer had pleaded that the Army Act was older than that for the other armed forces and that if the request of the petitioner was granted, as much as half of the act would have to be revised.
Justice Gulzar Ahmed said that the trial procedure has changed after the inclusion of Article 10A in the Constitution and transparent trials and proceedings have become a basic right now. Anything that violates this right will become null and void.
The army’s counsel sought time to seek advice from the relevant authorities and said that a detailed discussion would be held at the defence ministry. The court, however, advised him to seek initial advice from his client and inform the court today (Tuesday) as to whether the army was in agreement over making an amendment to the law.
Kayani’s extension challenged
Meanwhile, a former army officer, challenging the legality of the extension of Ashfaq Parvez Kayani’s service, appealed to the Islamabad High Court (IHC) to hear his petition on an urgent basis, in view of the army chief’s recent ‘political statements’.
The application for an early hearing is to be presented before the IHC today.
Petitioner Colonel (retd) Inamur Rahim, who is also the convenor of the Ex-servicemen Legal Forum, filed an application for an early hearing of the Intra Court Appeal (ICA) against the extension of Kayani’s service after he crossed the age of superannuation.
The petitioner maintained that Gen Kayani, assuming himself to be a public servant on the basis of an illegal extension of service beyond the age of 60 years, issued a political statement, which disturbed “the whole society”. He added that had he been subject to the Army Act, he would not have dared to issue a statement of that kind in violation of the oath of a legitimate chief of army staff. (WITH ADDITIONAL REPORTING BY OBAID ABBASI IN ISLAMABAD)
Published in The Express Tribune, November 13th, 2012.