WHEN Pakistan’s parliament hastily empowered military courts to try civilians suspected of committing terrorism-related offences, in defiance of international standards, it was criticised for failing to adequately consider the many negative consequences of this legislation. In addition to the secrecy of proceedings before military courts and other fair trial concerns raised at the time, we now see another problematic consequence of the law: the trial before military courts of juveniles, or individuals who were under the age of 18 at the time of the alleged offence.
In January 2015, parliament enacted the 21st Amendment and corresponding amendments to the Army Act, 1952, to give military courts jurisdiction to try all persons, including civilians, alleged to have committed certain offences related to terrorism. The amendments provided 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 stipulated that in case of inconsistency with other laws, provisions of the Army Act would prevail. The amendments did not expressly exclude juveniles from their ambit.
These overbroad provisions created the possibility that in certain counterterrorism-related cases, the Army Act could override the provisions of the Juvenile Justice System Ordinance, 2000, which give juvenile courts exclusive jurisdiction to try individuals below 18 years of age and prohibit the death sentence where juvenile offenders are found guilty.
Proceedings before Pakistani military courts fall well short of national and international standards.
These fears have now come to pass in the operation of military courts. Families of individuals convicted and sentenced to death by military courts have filed a number of review petitions before various high courts in the country alleging that their sons or brothers were below the age of 18 at the time of arrest or detention.
In one case, the mother of the convict claims her son, Haider Ali, was arrested in 2009 by military authorities. At the time of arrest, he was only 14 years old and a student of class 10. His whereabouts remained unknown to the family for six years. They finally heard about him in a statement by the military’s inter-services public relations announcing that a military court had found Haider Ali guilty of involvement in “committing heinous offences relating to terrorism” and had sentenced him to death.
In August 2015, Haider Ali’s mother challenged the conviction and sentence before the Peshawar High Court citing a number of fair trial concerns as well as raising the issue that he was a child at the time of arrest.
In response to the question of Haider Ali’s juvenility, the additional attorney general (AAG) argued that the amendments to the Army Act superseded all other laws — procedural and substantive — and military courts could legally try individuals suspected of committing terrorism-related offences, even if they were under the age of 18 at the time of the alleged offence or had been arrested before the 21st Amendment was passed.
In October 2015, the Peshawar High Court delivered its judgement. It agreed with the AAG and went on to dismiss the petition, including on the ground that “overriding effect has been given to the amendments made in the Pakistan Army Act over any other law for the time being in force”.
Under international standards, including the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, and the Convention on the Rights of the Child (CRC), which Pakistan ratified in 1990, and the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules), juveniles are entitled to all internationally recognised fair trial guarantees that apply to adults, as well as special care and additional protection.
While these standards encourage alternatives to ordinary judicial procedures, they are alternatives that must be more, not less, protective of their needs as children. Under the CRC, the best interests of the child must be taken into account in any encounter that he or she has with the state, including in respect of the criminal justice system. The Principles Governing the Administration of Justice through Military Tribunals provide that in line with these standards, “in no case … should minors be placed under the jurisdiction of military tribunals.”
Far from ensuring special care and additional protection for juveniles, proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent, impartial courts: judges are part of the executive branch of the state and continue to be subjected to military command; judges are not legally trained, let alone especially trained in protecting child rights and the principles related to juvenile justice; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgement, including the essential findings, evidence and legal reasoning, is denied. In addition, the procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and details about the alleged offences are kept secret.
Disturbingly, military courts also have the power to pass death sentences, which is expressly and absolutely prohibited under Pakistani and international law for individuals under the age of 18 at the time of the alleged offence.
According to news reports, the interior ministry recently asked for confirmation of the age of the accused individuals in 10 cases before referring them to military courts, seemingly as a precaution against cases of juveniles being transferred to military courts. If these reports are true, they show complete incoherence and confusion in the policies of various government departments on the question of the jurisdiction of military courts to try alleged juvenile offenders for terrorism-related offences.
The government must clarify its policy on referring children to military courts, and ensure that no case of an individual who was under 18 at the time of the alleged crime is referred or transferred to military courts for trial. Pakistan’s ‘military justice’ system is already glaringly incompatible with the right to a fair trial and the independence of the judiciary — the trial of juvenile offenders, including the possibility of their execution if convicted, would make it nothing short of draconian and a travesty of justice.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, December 14th, 2015