Lal Masjid commandos court-martialed seek justice from SC

[mughaljee]

Hi Mughaljee,
meri tarah aap kay bhee sarey baal jhar jayen gay.

Sir,
Please dont't say,
meri tarah aap kay bhee sarey baal jhar jayen gay.
meri tarah aap kay bhee sarey baal Safaad hoo jayen gay,
this is bearable

 

[hillman32]

Court of Appeals comes under the JAG. It is not a civil court. Nonetheless, all military laws have to abide by constitutional limits and they have been interpreted in multiple cases in the SC. Air Force Act has had to be amended twice as well.



United States Court of Appeals for the Armed Forces is a civil court like many other Appeals Courts for militaries in the world. Ours is not such a case though.



"Present" is a wrong word. Again you are interpreting as if the judgment is being forwarded to a civil court. A defendant has the right to appeal his court. Unless a copy of the judgment is provided, he has no way he can appeal the decision.

Let me just clarify the whole scenario for you people are stuck with twisting it somehow when it is plain simple.

1. Soldiers handed down punishment by Field General Court Martial.
2. Soldier has now right to appeal decision in Court of Appeals.
3. Defence has not been provided copy rendering an appeal out of the question.
4. Federal Shariat Court has deemed this an unconstitutional and UnIslamic act.

My objections to Court of Appeals being a military court are irrelevant here for the fact of the matter is that somebody is being denied a fundamental right to appeal. He was handed down a punishment because he allegedly sympathized with the enemy and expressed views not to support an operation against them. Therefore he was handed a punishment for it, which he should serve not withstanding his fundamental right to appeal the decision. If you happen to read jurisprudence, or perhaps even try to think rationally why it is so necessary to provide an appeal then you'll support the right to receive a copy of the judgment. An error in judgment, mistrial or technicality cannot be ruled out of question in any judgment anywhere in the world. That is why an appeals stage is always present so as not to sentence anybody unjustly. Besides the fundamental flaw of military judges in Pakistan being field soldiers and not judicial officers, there always exists the chances of an unjust decision. Even if the proof is downright conclusive including forensic, circumstantial or even testimonial, the defendant is allowed the right to appeal keeping in mind the profound nature of the punishment.

If you perceive this as some bad-image propaganda, then perhaps you should think by placing yourself in a position where you might have been the victim of injustice. Nobody, absolutely nobody has said that the judgment is wrong, unjust or unnecessary (the merits of the judgment haven't been released anyway) but I for one believe that he should have the right to a fair trial and an appeal.

A fair trial constitutes both an impartial, experienced and trained judge and a good defence lawyer. In the absence of these things, what is present i.e. a Field General Court Martial and the existing nature of the Court of Appeals should not be denied. He has been given the right to appeal his judgment, nobody has the right to deny him this right.

Army do the things in its own way. Every man who join Army accept this before joining the Army.

Who are you to criticize an established system ?

Do not try to create misunderstanding about Pak Army System of Justice.

 

[Aamir Hussain]

Well there are certain things to be considered that make this a special case

1. Most important fact is that Musharraf's regime had hit an all time low and so had the image of army among public. While the big generals in their mighty mansions were happy supporting Musharraf, soldiers were losing morale due to the alarming mistrust between public and the army. That was one of the biggest concern for Kayani and that is exactly why as soon as he took office his first priority was adressing these concerns and reviving army's image

2. Musharraf was an American stooge and he pretty much turned the army into a bunch of mercenaries for the Americans therefore it can be understood why the officers questioned there superiors

3. Soldiers are humans, they aren't machines.. They have a conscience and a right to think for themseleves.. An order to lay waste to a masjid and that too by a commander notorious for US buttlicking.. who wouldn't second guess that ?

4. Give em atleast a chance to defend their honour

5. We want soldiers who want to protect their country not because they are ordered to. And to make that happen army has to be fighting for the people and by people I mean us Pakistanis not Washington.

In the first place this has nothing to do with Musharraf. The issue is the right of refusal to serve or in US term is “Conscientious Objector."

Whether we like Mushi or not, Armed Forces personnel do not have the right to choose where, and when to fight, they need to follow orders; period.

There were other cases when PA Commandos were asked to go into an operation and they refused. Subsequently they were kicked out of the Army and later assassinated their ex. CO!! The matter was hushed up but the fact remained.

 

[Old School]

Pakistan Army Act 1952

Section 133
No remedy shall lie against any decision of a court martial save as provided in this Act, and for the removal of doubt it is hereby declared that no appeal or application shall lie in respect of any proceeding or decision of a court martial to any court exercising any jurisdiction whatever. Period.

 

[AZADPAKISTAN2009]

Civil and Military courts systems are different that much I know and civilian courts can't do much

 

[sparklingway]

Army do the things in its own way. Every man who join Army accept this before joining the Army.

Who are you to criticize an established system ?

Do not try to create misunderstanding about Pak Army System of Justice.

Can I question your understanding of the law? Or is it again the cloud of self-righteousness that has blocked your understanding of what was posted?

In the first place this has nothing to do with Musharraf. The issue is the right of refusal to serve or in US term is “Conscientious Objector."

Whether we like Mushi or not, Armed Forces personnel do not have the right to choose where, and when to fight, they need to follow orders; period.

There were other cases when PA Commandos were asked to go into an operation and they refused. Subsequently they were kicked out of the Army and later assassinated their ex. CO!! The matter was hushed up but the fact remained.

Indeed it has nothing to do with Musharraf. Creder was allowing his dislike of a personality to get involved in a totally unrelated incident.

Pakistan Army Act 1952

Section 133
No remedy shall lie against any decision of a court martial save as provided in this Act, and for the removal of doubt it is hereby declared that no appeal or application shall lie in respect of any proceeding or decision of a court martial to any court exercising any jurisdiction whatever. Period.

The right to appeal in the Court of Appeals is granted by the same act. I'll post the text of the said clause when I get home. I don't carry my copy of the Pakistan Code all the time.

Civil and Military courts systems are different that much I know and civilian courts can't do much

The issue is not of appeal in the civil courts but a denial of the constitutional right of appeal in a Court of Appeals which is a military court that has been deemed to be unconstitutional twice.

To everybody,

If you people have nothing better than to start the defaming argument as usual, then please do not add to this thread.

I've restated the issue more than a dozen times but people don't seem to get what the issue is. Perhaps that is a result of the fact that none of you have ever tried to read the law, understand it or try to abide by it in your lives.

Go and read the previous posts and understand the real issue otherwise don't post your BS.

As I have stated in the posts more than a dozen times already, the issue is not the judgment handed out in the case, but rather the refusal to provide a copy of the judgment which deprives the convicts of the right to appeal. Their right to appeal has been granted by the Army Act and the refusal has been deemed unconstitutional and un-Islamic by the FSC not once, but twice.

Get your head around the real matter.

 

[Old School]

The right to appeal in the Court of Appeals is granted by the same act. I'll post the text of the said clause when I get home. I don't carry my copy of the Pakistan Code all the time.

SC does not have any business here as this is about a verdict delivered by Field General Court Martial . Court of Appeal does not mean the Supreme court.

131. (1) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a general, field general or district court martial may submit a petition, before confirmation of such finding or sentence, to the officer empowered to confirm it and, after confirmation, to the Government, or the Chief of Army Staff or to any prescribed officer, provided that such prescribed officer is higher in rank than the one who confirmed such finding or sentence.

(2) Any person subject to this Act who considers himself aggrieved by the finding or sentence of a summary court martial may submit a petition to the Government, or the Chief of Army Staff, or any officer empowered to act under section 128.

 

[sparklingway]

SC does not have any business here as this is about a verdict delivered by Field General Court Martial . Court of Appeal does not mean the Supreme court.

The copy of the judgement hasn't been provided rendering an appeal out of the question as the defendant has no known merits over which he can appeal. In a tribal court you can say "I appeal, mujhay maaf kar do" but in a court of law you appeal on some grounds. AS the defendant hasn't been provided the grounds and merits of his punishment, the right to appeal has been denied.

The issue here is constitutional as the right to appeal has been denied. The right to appeal is a fundamentally guaranteed constitutional right. The petition in this case won't an appeal of a criminal case rather a constitutional petition seeking protection a fundamental right that has been guaranteed and protected already.

 

[Old School]

The issue here is constitutional as the right to appeal has been denied. The right to appeal is a fundamentally guaranteed constitutional right. The petition in this case won't an appeal of a criminal case rather a constitutional petition seeking protection a fundamental right that has been guaranteed and protected already.

Pakistan constitution waived some constitutional rights for members of the armed forces . Therefore, this is not unconstitutional.

In the Constitution of Pakistan ,


Article 245. Functions of Armed Forces.

[(1)] The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.

(2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any court.

(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245:

Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.

(4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting.]

 

[sparklingway]

Also, I did not bring into the debate my views over the flaws, ineptitude and weaknesses of the military's justice system. I'll write on that sometime later in detail.

Just another thing I thought I might bring to notice. You were copying the text from a Bangladeshi law website as far as I can see. Before copying the text of the law, always make sure when was the copy updated. The Army Act was amended in 1958, 1959, twice in 1962, 1963, 1964, 1965, 1973, 1975, 1976, 1977, 1979, 1983, 1984, 1992 and the 2007 amendment that was revoked. Hence try to be sure before copying an article from a Federal Statute.

 

[Old School]

Also, I did not bring into the debate my views over the flaws, ineptitude and weaknesses of the military's justice system. I'll write on that sometime later in detail.

Just another thing I thought I might bring to notice. You were copying the text from a Bangladeshi law website as far as I can see. Before copying the text of the law, always make sure when was the copy updated. The Army Act was amended in 1958, 1959, twice in 1962, 1963, 1964, 1965, 1973, 1975, 1976, 1977, 1979, 1983, 1984, 1992 and the 2007 amendment that was revoked. Hence try to be sure before copying an article from a Federal Statute.

Would you please specify which one was revoked or amended among those I mentioned here ?

 

[sparklingway]

Pakistan constitution waived some constitutional rights for members of the armed forces . Therefore, this is not unconstitutional.

I'll see my books for the exact case but the SC has deemed that no constitutional rights can be waived by any authority or any person willingly. This was recently brought up again when NS was returning to Pakistan and the Federation stated before the SC that he had signed a letter stating that he would not return. The AG was reminded by the judiciary of his basic training that no constitutional right can be waived off, either by legislation or by willful authority.

PS: Don't write that Nawaz returning isn't the same thing as a military convict seeking constitutional protection of his right to appeal. The issue here is protection of rights and that was just a reference.

Article 245. Functions of Armed Forces.

[(1)] The Armed Forces shall, under the directions of the Federal Government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so.

(2) The validity of any direction issued by the Federal Government under clause (1) shall not be called in question in any court.

(3) A High Court shall not exercise any jurisdiction under Article 199 in relation to any area in which the Armed Forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245:

Provided that this clause shall not be deemed to affect the jurisdiction of the High Court in respect of any proceeding pending immediately before the day on which the Armed Forces start acting in aid of civil power.

(4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the Armed Forces start acting in aid of civil power and pending in any High Court shall remain suspended for the period during which the Armed Forces are so acting.]

Where does it state that the SC is not supposed to judge a constitutional petition from any member of the Armed Forces seeking protection of his basic rights? Well I went overboard with this statement because this is how most people comprehend legislation to be like. Seriously though, this does not provide any jurisdictional protection to cases of conditional nature and do not grant denial of protection of constitutional rights of a person.

As I stated earlier, constitutional rights i.e. the fundamentally granted ones cannot be taken away through any legislation or any willful authority. They would cease to be fundamental rights if somebody had the right to sign off them.

Although not concerned with the topic, the actions of the armed forces have been subjected to this protection not the nature of an unconstitutional acts. These clauses refer to the proceedings of the Armed Forces, and they were stated here because the Federation will be the made party to an appeal in the case of the actions/operations of the Armed Forces rather than the individuals. The reasons of the operations, if approved by the Federal Govt cannot be called into question anyhow but the violation of basic rights in such cases can be called into question as they were during the Baloch Operations of '74 and earlier in '68 and later in '70 in Bangladesh (before things turned extremely ugly).

Similarly, the FSC would not have passed judgement over the two cases I stated in the second past, had the petition been inadmissible before the court. Not only was the petition accepted, it was ruled upon and not once but twice. Moreover, the Army Act and the Air Force Act have been interpreted by the SC more than half a dozen times in different cases. The superior judiciary has all the powers to accept and rule upon cases of constitutional nature.

The same issue has been judged upon not once but twice by the FSC. Therefore I am unable to grasp as to how you can state that this is out of the jurisdiction of the SC and is an inadmissible petition. Or perhaps you did not read the summary of the two judgement I posted in the second post?

Can it be more clearer than this:

The Federal Shariat Court while disposing of two Shariat Petitions Filed by Col (Retd) Muhammad Akram relating to The Pakistan Army Act, 1952 and Pakistan Air Force Act Rules, 1957 has held that “non-supply of Copy of judgment, depositions and other record of the case to convict person/appellant would tantamount to denial of justice to him as he will not be in a position to furnish grounds to assail his conviction in appeal. Similarly it is his basic right to be heard either in person or through his counsel by the appellate authority. Right of appeal is a substantive right, the denial of copy of judgment and of hearing in appeal would amount to denial of the substantive right resulting into injustice on the touchstone of Quran and Sunnah of Holy Prophet (Peace be upon Him). Accordingly the Federal Government was directed by the Federal Shariat Court to take necessary steps within six months for amendment of Rules of the Pakistan Army Act, 1954 and Pakistan Air Force Act Rules, 1957 ensuring supply of judgment, depositions and other record of the case to all the persons to whom sentence has been awarded whether under Hudood laws or not.”

Also note that as it turns out, I found a couple of days ago that the earliest judgement in this series was PLD 1989 SC 6, a suo moto notice over a clause in all three acts which allowed a right to appeal be denied altogether. No appeals whatsoever. This was deemed unconstitutional and although challenged by three forces through MoD, it was turned down and Justice Nasim Hasan Shah wrote a scathing judgement over the appeal. Perhaps the 1992 amendment might have removed that clause which allowed not allowing the right to appeal altogether. Since then they seem to have turned to a new thing, denying copy of judgement and hence denying right to appeal. And although, the superior judiciary has judged over the matter, they seem to be unconcerned with it as Zia aptly said that the Constitution was just a piece of papers.

 

[sparklingway]

Would you please specify which one was revoked or amended among those I mentioned here ?

I didn't say that this article was revoked. I was stating that there is probability that it could have been amended and before using acts from countries which shared the same law earlier, one should make sure that it has not been amended.

These articles aren't the ones that are usually amended, hence no need to worry. I was merely stating a warning one must remember. Perhaps you misread my statement "and the 2007 amendment that was revoked" whereby I meant that the 2007 amendment was revoked rather than the articles you quoted as having been revoked.

 

[Super Falcon]

well it is very hard for these commandos to come back they had made a right decision as a muslim but they did not fullfilled their duties i dont know that lal masjid Mullah's was right or wrong because we some time kept in darkness if they were right than these commandos were also right if those Mullah's were making ISLAM as their propperty than the case become to critical for these commandos yes the HOME of ALLAH should not be in blood shades but some how these Mullah's has to blamed why they kept House of ALLAH war zone they should have fighted from anywhere else they were using masjid as theior shiled in this case the millitary did right so globally ISLAM which is been gin line of fire and in minds of west as terrorist which is wrong wont get out of hands we as MUSLIMS should let other know true meanings of ISLAM not be terror but again im not sure who has to be blamed for this LAL masjid episode i dont blame MULLAH's but i blame them for using house of ALLAH as war zone

 

[Aamir Hussain]

well it is very hard for these commandos to come back they had made a right decision as a muslim but they did not fullfilled their duties i dont know that lal masjid Mullah's was right or wrong because we some time kept in darkness if they were right than these commandos were also right if those Mullah's were making ISLAM as their propperty than the case become to critical for these commandos yes the HOME of ALLAH should not be in blood shades but some how these Mullah's has to blamed why they kept House of ALLAH war zone they should have fighted from anywhere else they were using masjid as theior shiled in this case the millitary did right so globally ISLAM which is been gin line of fire and in minds of west as terrorist which is wrong wont get out of hands we as MUSLIMS should let other know true meanings of ISLAM not be terror but again im not sure who has to be blamed for this LAL masjid episode i dont blame MULLAH's but i blame them for using house of ALLAH as war zone

I think the whole discussion has taken a different turn because Lal Masjid was contentious issue for both for and agianst (Army Action) factions. And as usual -- it becomes an emotional issue for both sides in this country of Pure.

The issue being discussed here is simple -- should the Army personnel, courtmartialed for refusing to fight -- be given the right to appeal in front of the Army Tribunal-- the answer is yes they should be. It is the law. The same law also gives the right to be taken infront of the firing squad for the same crime during the state of war!!!

Now, the debate, tinged with our personal position on the Lal Masjid Operation, on what the "Muslim" soliders should and should not have done is irrelevant. Pakistan Army is Pakistan Army it is sworn to defend the physical and idealogical borders of this state from all enemies, within or without!

If it was a Muslim issue than there are lots of Muslim soldiers in Indian Army and the same should have been done there as well. Simmillarly, if tomorow Afghanistan decided to annex NWFP/KP what should be our response --"Muslim Brothers" or defend our territorial integrity? Simmillarly, if some radical regime comes to power in Iran and decides to take Baluchistan back to its orginal boundries than all Shia Soldiers should just lay down their arms and go home???

We are a confused lot and routinely interlace Islam and our National Integrity. In most cases they both dove tail. However, in today's complicated world, National Integrity, sometimes, seemingly, is at loggerhead with greater Pan Islamic goals.

We should be very clear, that PAK ARMY is not a PAN ISLAMIC ARMY. Its courage, stength, motivation might come from our indomitable Islamic spirit but the basic fact is that it there to defend the territorial integrity of the Islamic State of Pakistan and not that of KSA, UAE, Iran, etc.

No Mullah has the right to challenge the state and kill our soldiers however pious he is. Let us not dismiss these things as rantings of a few "Miscreants" or misplaced Islam. There is a sinister design of a total demolition of state structure to ensure that survivability of these radical groups.