CATHOLIC NEWS OF THE WEEK . Saturday, 18 May 2019

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Pakistan Supreme Court puts black spot on justice

HONG KONG (SE): “August 5 will be remembered as a black day in the constitutional history of Pakistan,” the Hong Kong-based Asian Human Rights Commission says, calling the judicial acceptance of military courts by an 11 to six majority of the full bench of the Supreme Court a black spot on the already dark judicial history of the country.

Earlier this year, the parliament made an amendment to the Pakistan Army Act of 1952 to enable it to establish military courts in the wake of the massacre at the Army Public School in Peshawar on December 16 last year.

At the time, the government described military courts as being a necessary evil, but an evil that the nation could not do without.

Military courts are now empowered to try suspect militants, sentence them and order execution up to February 2017, although the death sentence can be subject to judicial review.

The Asian Human Rights Commission says this is tantamount to suspending the constitution by allowing a parallel judicial system equality before the law.

The commission adds that however frayed the Pakistani justice system may be, the parallel system puts paid to the right to a fair trial and due process, as enshrined in the constitution.

But it adds that a military court, which may or may not have judicial expertise, can hand down a death sentence on the slimmest of evidence.

However, it maintains that what is worse is to see the Supreme Court itself complicit in setting up this system, as it has reserved the right to judicial review on the grounds that military courts have no legal right to exist (coram non-judice—not before a judge or malice in law).

Consequently, to execute any of the thousands of terrorist suspects currently being held by the Pakistani military on the authority of a military court would be tantamount to execution without due judicial process and amount to structured extrajudicial murder, a crime that no state can afford to be found guilty of.

The Supreme Court observed that constitutional guarantees are not available to militants, although they are available to criminals. However, the court did not define or describe how to distinguish between a militant and a criminal.

Instead, it used an ambiguous phrase, “Terrorism in the name of religion or a sect.”

Dissenting judges advised that they believe the scenario will lead to endless discussions between defence lawyers and courts as to whether clients can appear before a military court or not.

Lawyers have termed the decision outsourcing justice to the military and one justice wrote, “As a constitutional principle it must be kept in mind that the powers vested in and exercisable by the court are not a matter of parliamentary grace or sufferance, but are granted for the purpose to protect the people against excesses, inter alia, of state organs and functionaries.”

Pakistan has already hanged 188 people since the Peshawar massacre and has 8,000 more siting on death row. There was international outcry when Shafqat Hussain, who was 14-years-old when he killed a child, was hanged on August 4.


His state-appointed lawyer did not present any evidence of his age at the time of the crime, leaving him to be tried as an adult, instead of a minor.

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