LAST week, the Supreme Court suspended the death sentences of four men convicted by military courts for terrorism-related offences. The court directed the attorney general to produce their case records so it could determine whether the convicts had been provided reasons for their convictions and sentences.

The Supreme Court’s order is encouraging. In August last year, the court let down the cause of human rights and the rule of law when it upheld the legality of the trial of civilians before military courts — it can now act to ensure that at the very least, the procedures of military courts meet basic standards of fairness.

How far the Supreme Court (and, for that matter, high courts) can effectively intervene to ensure people convicted by military courts have been tried fairly depends on two factors: first, the legal framework regarding the civilian judiciary’s jurisdiction over military courts’ proceedings and judgements; and second, the will of the civilian courts to uphold the cause of justice, even if it means defying the military and the executive authorities.

Let’s consider the question of jurisdiction first. The 21st Amendment provides that the Army Act, 1952, under which military courts operate, is exempt from the application of Article 8 of the Constitution, which states that laws that violate fundamental rights shall be void. It also provides that constitutional provisions relating to the independence of the judiciary will not be applicable in terrorism-related cases that are tried by military courts.

The Supreme Court must ensure that procedures of military courts meet basic standards of fairness.

Furthermore, the Army Act bars civilian courts from hearing appeals against judgements delivered by military courts, and Article 199 of the Constitution (relating to the jurisdiction of high courts) states that high courts may not intervene in cases where an application is “made by or in relation to a person … who is for the time being subject to any law relating to any of those forces”.

However, over the years, courts have chipped away at these jurisdictional limitations in the interest of justice. As elaborated by decades of jurisprudence, high courts may exercise their review jurisdiction under Article 199 of the Constitution to intervene in military courts’ proceedings on the grounds of coram non judice (decided by a court that lacks authority), mala fide (made in bad faith), or lack of jurisdiction. The Supreme Court in the 21st Amendment judgement reiterated this power to review judgements on the grounds stated here.

As an illustration, the Lahore High Court used this power a few years back to commute a death sentence given by a military court to an army officer (in a case unrelated to terrorism) after concluding that the military judges who sentenced him “had not been given the correct legal advice as to the quantum of sentence”. Many more examples are available.

Other relevant provisions specific to the Supreme Court include Article 187 of the Constitution, which gives the Supreme Court “power to issue such directions, orders or decrees as may be necessary for doing complete justice”. The Supreme Court has interpreted this to mean that if “dictates of justice demand”, “technicalities and formalities should not fetter its power”. In addition, Article 184(3) gives the Supreme Court jurisdiction over matters of public importance that relate to fundamental rights. (The court assumed jurisdiction over the cases of “missing persons” using this provision.)

As can be seen, the constitutional limitations on the jurisdiction of the superior judiciary, particularly the Supreme Court, are themselves subject to other constitutional considerations that allow courts the flexibility to act to ensure respect for the right to a fair trial, including under international human rights standards. Regrettably, the superior judiciary has thus far construed its review jurisdiction narrowly in terrorism-related cases, denying the right to effective remedy to a number of suspects even where gross violations of fair trial have been alleged.

Since January 2015, high courts have dismissed petitions on grounds of jurisdiction even where families of people convicted by military courts for terrorism offences have alleged their sons, fathers or husbands were tortured into ‘confessing’ their involvement in terrorism; were not given the right to engage counsel or call and cross-examine witnesses; were subject to enforced disappearance and remained ‘missing’ for many years before being produced before a military courts for trial; were denied judgements with reasons for their conviction; were children under 18 years at the time of the alleged offence; or were tried in secret proceedings and held in secret detention.

The Lahore High Court, for example, recently dismissed a petition made by the father of a suspect convicted and sentenced to death by a military court, who claimed his son was forcibly ‘disappeared’ in 2010. The court’s order did not address the allegation of enforced disappearance, but instead held the petitioner had “failed to establish the required elements so as to review the order of military court while sitting in writ jurisdiction…”

In another case, it held that it could only intervene in judgements passed by military courts where petitioners could prove malice or political victimisation — allegations of violations of fair trial and torture and ill-treatment were not in themselves sufficient.

In December 2015, the Supreme Court suspended the death sentences of two alleged terrorists convicted by military courts and referred their cases to the chief justice to constitute a larger bench to decide the emerging fair trial issues in the operation of military courts. Two months later, a larger bench of the Supreme Court will finally commence hearings from Feb 18.

The government has a legal duty to investigate, prosecute and punish perpetrators of terrorism. However, counterterrorism measures must be lawful and also be seen as legitimate. As Justice Khosa observed in his dissenting opinion in the 21st Amendment judgement: “compromising justice for combating this menace (terrorism) may be a death knell for the value system of the entire nation of more than 180 million people.”

Many analysts say the Supreme Court ‘compromised justice’ when it legitimised trials of civilians before military courts in the 21st Amendment case. As it now considers petitions from families alleging gross violations of the right to a fair trial in military courts’ proceedings, it has a chance to — at least partially — correct that wrong.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: reema_omer

Published in Dawn, February 16th, 2016