February issue 2017
Above the Law?
The special powers given to the army to try civilian suspects of terrorism in military courts expired early last month. In principle, the PML-N government decided to lobby for an extension in their powers through reaching a consensus with other political parties. At the expiration of military courts, the government immediately started talks with opposition parties for the extension. “The federal government has already initiated consultations for a constitutional amendment to continue the military courts for a period which is agreed to by all political parties represented in parliament,” a statement by Prime Minister Nawaz Sharif’s office said. The second in-camera consultation held on January 17 between the federal government and the opposition parties to decide the fate of military courts reached a stalemate.
Over the span of two years, 274 suspects were convicted by the military courts established through a constitutional amendment in 2015. Out of the 274 convicts, 161 were awarded death sentences, seven were given life imprisonment, while details were not provided by the military about the remaining 106 convicts. Over this period, 12 were executed. A majority of the convicts were allegedly affiliated with the TTP, Al-Qaeda and Sipah-e-Sahaba. The PPP, along with several religious parties and the Pakhtunkhwa Milli Awami Party (PKMAP), now plans to oppose the extension in the legal status of the military courts, while the PTI is still undecided.
In a statement released to the press, Inter Services Public Relations (ISPR) defended the establishment of military courts. The statement said: “The routine judicial system was under stress wherein judicial set-ups and judges were also subjected to acts of terrorism. Disposal through military courts has yielded positive effects towards reduction in terrorist activities.”
Human rights organisations, social justice groups, politicians and lawyers have expressed their concerns about the absence of fair trial in the military courts. The International Commission of Jurists (ICJ), in a briefing paper titled ‘Military Injustice in Pakistan,’ wrote, “Pakistan must not sacrifice core rule of law principles and deny the rights of accused persons in the name of speedy trials through secret proceedings before military courts. Instead, Pakistan should bolster the fair and effective administration of justice by strengthening the police’s capacity of investigation; improve the training of prosecutors for terrorism-related cases; and ensure protection of judges, prosecutors and witnesses, which are among the key reasons why certain perpetrators of terrorist attacks have been able to evade accountability in civilian courts in Pakistan.”
The reported procedure of referring a case to military courts is through the selection of specific cases by the provincial apex committees, which consist of both military and civilian officials. There were three military courts each in Punjab and KP, two in Sindh and one in Balochistan.
International Legal Advisor for ICJ in Pakistan, Reema Omer, believes that military trial of civilians has been a disaster for human rights in Pakistan. “Its effects will continue to haunt the rule of law and due process in the country for many years to come,” she asserts.
She adds: “These military courts have operated with staggering lack of transparency — their procedures; the selection of cases to be referred to them; the location and timing of the trials; the precise charges and judgements; and in some cases, even the names of the suspects, are not disclosed. Such secrecy is not just a violation of the suspects’ rights, it also calls into question the verdicts delivered by military courts.”
Human Rights Watch’s representative in Pakistan, Saroop Ijaz, echoes the same concerns. “Military courts violate basic human rights because the suspects — although they may be hardcore terrorists — must get the right to a fair trial,” he said.
He underlines the need to regulate and empower the criminal justice system to eliminate the need for an alternative justice system. “The civilian courts were not functional and lacked the capacity to hold the perpetrators of violent crimes accountable, which is the area the government needs to be focusing on, rather than looking for shortcuts,” he said.
Reema Omer shares these concerns about the criminal justice system. “Unsurprisingly, there is no sign of the promised reforms to strengthen the ordinary criminal justice system to effectively handle terrorism-related cases — an aspect of NAP that the government completely neglected,” she says.
Ms. Omer urges that the government should not resort to more short-term, short-sighted security measures that are contrary to human rights norms. “Instead, it should urgently invest in enhancing the capacity and security of judges, investigators and prosecutors to make the regular criminal justice system more effective in conducting fair and credible terrorism trials to bring the perpetrators to account.”
Saroop Ijaz is concerned about the extremely high number of confessions in these cases and lack of access to legal counsel. “The reasoning behind the extension of the military courts — the doctrine of necessity, or the ‘extraordinary times require extraordinary measures’ argument — if taken to a logical conclusion, can lead to the complete erosion of civilian authority in Pakistan,” Ijaz adds.
According to the ISPR, 95 per cent of the people convicted by military courts have confessed to their crimes. Reema Omer finds this extremely problematic. “This incredibly high rate of ‘confessions’ — especially given the complete absence of safeguards and independent monitoring — raises serious concerns about torture and other ill treatment,” she says.
A recent report in the daily Dawn suggested that at least five people, who were convicted by the military courts, were reported to have gone missing. One such person was Ubaidullah, who was suspected to be behind the attack on Bannu jail. A labourer belonging to Darya Khan, Ubaidullah, went missing in 2012. While his case was still pending in the Inquiry Commission on Enforced Disappearances, his family was informed in March 2016 that he had been sentenced to death.
Reema Omer, who has been following the decisions of military courts, notes that a large number of people convicted by the military courts were assumed “disappeared” by the law enforcement agencies and kept in secret detention years before their military trials. “Along with other glaring human rights concerns that emerge in their operation, the insidious use of military courts, to ‘legitimise’ certain past cases of disappearance makes them all the more deplorable,” she says.
Advocate Ali Zia Bajwa, who represented some of the convicts, believes there is not much difference between ordinary courts and the military courts, when it comes to fair trial. “Both the courts, in principle, allow the right to counsel and other basic rights. However, the only difference is that military courts act swiftly in these cases,” he says. In practice, according to Bajwa, all over the country, no suspect was given the right to private counsel. “Neither their families, nor their lawyers were allowed to attend hearings during their trials,” he says. Bajwa claims that the eye-witnesses in the cases he took had testified in favour of his clients. However, they were not presented before the military courts; hence, the convictions happened only on the basis of their confessions. “Our habeas corpus petitions were in the high court when we were informed about their convictions, which is mind-boggling,” Bajwa says.
While the government and opposition parties are yet to reach a decision on the fate of military courts, PPP MNA Nafisa Shah believes the PPP is going to strongly oppose the extension. “I believe every form of parallel justice is unconstitutional. We had to vote in favour of the establishment of military courts, but things have changed now,” she says. “We don’t know what has been achieved through these courts; we don’t know how effective the courts were; it’s the responsibility of the interior minister to take the parliament into confidence so that we can take an informed decision,” she asserts.