LAHORE: The Human Rights Commission of Pakistan (HRCP) and the International Commission of Jurists (ICJ) have apprehended that following the 21st Amendment, juveniles suspected of committing terrorism-related offences could face trial by the newly-constituted military courts.

According to a handout issued on Thursday, in a letter sent to the prime minister and the interior minister on Thursday, HRCP and the Geneva-based ICJ said: “The 21st Amendment and the corresponding amendments to the Army Act, 1952, give military courts jurisdiction to try all persons, including civilians, alleged to have committed certain offences related to terrorism. The amendments provide that the government may transfer a case related to the enumerated offences under the Army Act from any court (which prima facie includes juvenile courts) to a military tribunal for trial. The amended law also stipulates that in case of inconsistency with other laws, provisions of the Army Act would prevail. The amendments do not expressly exclude juveniles from their ambit.”

HRCP and ICJ said these provisions had created the possibility that the requirement under the Juvenile Justice System Ordinance (JJSO), 2002, whereby juvenile courts would have exclusive jurisdiction to try individuals below 18 years of age, could be overridden in certain terrorism-related cases.

“In the circumstances, it is important that the government clarifies and ensures that in implementing the law, individuals who were under 18 years at the time of (committing) the alleged crime may not be tried in military courts, not least because a trial before such a court would violate Pakistan’s obligations under international law,” the letter reads.

HRCP and ICJ reminded the government that under international standards, including the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, and Convention on the Rights of the Child, which Pakistan ratified in 1990, as well as the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), juveniles were entitled to all internationally recognised fair trial guarantees that applied to adults, as well as special care and additional protection.

The letter noted that far from ensuring special care and additional protection for juveniles, proceedings before the military courts fell well short of national and international standards requiring fair trials before independent and impartial courts as in such courts judges were part of the executive branch of the state and continued to be subjected to military command, they were not legally trained, let alone specially trained on protecting the rights of the child and the principles related to juvenile justice, the right to appeal to civilian courts was not available, the right to a public hearing was not guaranteed and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, was denied. In addition, the procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and alleged offences were kept secret, the letter said.

“It should also be noted that the Committee on the Rights of the Child has taken the position that only civilian courts are able to take into account the requirements of the proper administration of justice in the cases of juveniles,” the letter said.

“HRCP and the ICJ urge you to clarify the government’s policy on referral of juveniles (cases) to military courts for trial, ensure that in its implementation of the amended law, no case of an individual who was under the age of 18 at the time of the alleged crime is referred or transferred to military courts for trial.

“Doing so will help to ensure that Pakistan complies with of its obligations under Pakistani law and international standards to ensure and that juveniles suspected of infringing the penal law are only tried by special juvenile courts in proceedings that meet international standards for the fair administration of juvenile justice,” HRCP and ICJ concluded.

Published in Dawn, May 22nd, 2015

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