Procedures questioned: 16-year-old plea against military courts restored

Petitioner claims that some clauses of the Army Act are contrary to the Constitution and need amendment


Hasnaat Malik January 27, 2015
Petitioner claims that some clauses of the Army Act are contrary to the Constitution and need amendment. STOCK IMAGE

ISLAMABAD:


The Supreme Court has restored a 16-year-old constitutional petition against the procedure of military courts.


On Monday, a two-judge bench of the apex court, headed by Justice Jawwad S Khawaja, instructed its office to fix within two weeks the plea seeking amendments in certain provisions of the Pakistan Army Act 1952 relating to military court proceedings.

Appearing before the bench, petitioner Col (retd) Muhammad Akram said that the top court had dismissed this plea in 2012 without hearing him, adding that he had not received any notice regarding the case at that time.

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.

In the application, he also claimed that to take a statement from an accused on oath during court martial and then use it against him as evidence is contradictory to the Qanoon-e-Shahadat Order.

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.

On the other hand, Deputy Attorney General Abdul Rasheed Awan said that he has been instructed by relevant authorities to oppose the restoration of this plea.

The bench, however, rejected his stance and asked its office to fix the matter before the court within two weeks.

Akram has also sought a direction to the ministry of defence to amend or modify the Army Act to bring it in line with the Pakistan Navy and Air Force Acts.

Appearing before the bench, Deputy Attorney General Abdul Rasheed Awan said that he has been instructed by relevant authorities to oppose the restoration of this plea.

The bench however rejected his stance and asked its office to fix the matter before the court within two weeks.

Earlier, Army authorities while submitting reply three years ago had opposed a dormant petition seeking amendments in certain provisions of the Pakistan Army Act 1952 relating to proceedings of military courts.

The military authorities had also stated that the Army Act was a special act and that any attempt to bring it in line with the general law was to defeat the very purpose of that law.

The reply had also argued that the petition is not maintainable as it does not raise a question of “general public importance” to invoke the jurisdiction of the Supreme Court with regard to Article 184 (3) of the Constitution, nor does it seek to enforce any fundamental rights conferred by the Constitution.

Any law relating to the armed forces is outside the operation of the normal scheme of the Constitution, the reply stated.

“The petition is a virtual plea to bring a special law at par with the general law. The Pakistan Army Act is a special law applicable to a specific class and is a complete code by itself which inter-alia provides for appointment, enrolment, service discipline, inquiries and investigation, summary punishments and trial by courts martial,” read the statement of army authorities.

Published in The Express Tribune, January 27th, 2015.

COMMENTS (2)

Ashraf | 6 years ago | Reply

Every Muslim has heard the story of the Camel and the Bedouin's tent. Once the army has the power in the judiciary, they will not give it back.

A J Khan | 6 years ago | Reply

Is is not a time barred case? Appears to be special love for rehearing worthless case.

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