ISLAMABAD, Feb 10: Since 2009 military personnel have been increasingly appealing to the high courts against their conviction by the military court despite legal barriers.

Under clause 3 of Article 199 of the Constitution, high courts cannot proceed with a case filed by any armyman against the military authorities.

According to an official of the Judge Advocate General (the legal branch of the army), since 2009 about 90 petitions filed by army personnel against court martial proceedings, dismissal from service or other grievances have been dismissed by high courts of the country.

Article 3 of the constitution says that courts cannot pass an order “on application made by or in relation to a person who is a member of the armed forces, or who is for the time being subject to any law related to any of those forces in respect of his terms and conditions of service; or in respect of any action taken in relation to him as a member of the armed forces,” said Shamsuddin Qazi, a 95-year-old retired brigadier, while talking to Dawn.

He pointed out that this clause was introduced by military dictator Ayub Khan in the constitution of 1962 (clause 3 of article 98).

“Khan did not want the courts to interfere in matters related to the service of army personnel,” Brig Qazi argued, adding that the military dictator feared that courts would challenge his authority or pass an order against him.

It is noteworthy that the Indian constitution of 1950 has no such clause that barred courts from taking up matters related to the armed forces.

In the 1973 constitution, this clause was maintained as 199 (3). In fact, chapter I of the constitution, which is about the ‘fundamental rights’, includes a clause in article 8: “The provision of this article shall not apply to any law related to the members of the armed forces, or of the police or of such other forces who are charged with the maintenance of public order, for ensuring the proper discharge of their duties.”

In the recent past, some of the petitions which were dismissed because of the  199 (3) clause related to the extension in the service of Chief of Army Staff General Ashfaq Pervaiz Kayani, the appeals of convicts in the GHQ and Musharraf attack cases and army officers convicted for having relations with the banned Hizbut Tahrir.

However, the courts have also accepted some cases by interpreting the article differently.

For example, Lahore High Court issued a contempt notice to the JAG of Pakistan Air Force (PAF) for not providing documents related to the proceedings of the Air Force Tribunal to a convict, Amjad Farooq. But the same court used the ouster clause to reject the petition of Ziaul Haq who was dismissed from service for recording a false statement in the military court. He had requested the court to ask the military authorities to provide the details and the documents of his trial proceeding under the military law.

But interestingly, in a few cases, the superior courts, have ignored this clause and heard the petitions of aggrieved army officials.

For example, a military court had convicted 18 army personnel for disciplinary reasons and sentenced them to two years’ imprisonment. But once they approached the LHC, Judge Mazhar Iqbal Sidhu in December 2012 reduced their sentence under section 382 of Criminal Procedure Code (CrPC).

LHC Justice Chaudhry Tariq and Justice Asad Munir also gave relief to aggrieved army persons. Both the judges heard two identical matters of convicted armymen and ordered the jail authorities to reckon their imprisonment from the date when they had been taken into custody by the military authorities and to release them accordingly.

According to Col (retired) Inamur Rahim, a former JAG of the army, the high courts can set aside the decisions of military courts or army authorities if it is proved that these have been taken “without jurisdiction, or are coram non-judice.” This means that a decision has been taken without any lawful authority or with a mala fide intention.

“The fate of an aggrieved person depends upon the interpretation by a judge,” he said.

But, he argued, courts dismissed the petitions of aggrieved army people early on, because the military authorities refused to provide the record of any proceedings due to security reasons.

This in his opinion does not allow the courts to see if the decision had been taken legally.

Hence, Mr Rahim feels that the ouster bar is against the fundamental rights of the personnel of armed forces and it should be changed.

S. M. Zafar, a senior constitutional expert, however, was not as critical as Mr Rahim. In his view, the clause was needed to maintain discipline and to protect the army against frivolous litigation.

Col (retired) Sardar Aziz Chandio, another legal expert with experiences in the military, said matters of armed forces personnel should be handled internally by the military. He, however, agreed that army personnel should have the right to appeal in the superior courts against decisions of the military courts.