ACCORDING to the ISPR, 121 out of 130 (93pc) people convicted by military courts ‘admitted’ to their involvement in terrorism. In the absence of adequate safeguards and independent review mechanisms in military proceedings, this high ‘confession’ rate raises serious questions about their voluntariness, and even concerns about torture and other ill treatment.
One fundamental principle of a fair trial is the right against self-incrimination: people accused of a crime cannot be compelled to testify against themselves. Where people still choose to admit to criminal conduct, the law mandates that great care must be taken to ensure they do so voluntarily, free from any coercion, torture or ill treatment. The absolute right to be free from torture and other ill treatment under any circumstances is affirmed in a number of international human rights instruments, including two treaties to which Pakistan is a party: the International Covenant on Civil and Political Rights and the Convention against Torture. Article 15 of CAT and Article 14 of the Constitution expressly prohibit statements made under duress to be used as evidence.
Pakistan’s criminal justice system has a number of safeguards to prevent this. For example, suspects have to be presented before a magistrate as soon as possible after arrest, and the law prohibits ‘police remand’ (custody for interrogation purposes) for prolonged periods. In addition, those in custody have the right to meet lawyers, family and human rights organisations, which helps to ensure they are humanely treated. The law also makes provision for detainees to raise allegations of torture and ill treatment before courts and other independent redress mechanisms.
Pakistan’s terrorism victims deserve truth and justice.
Following the adoption of the 21st Amendment, however, none of these safeguards have been retained for people tried by military courts for involvement in terrorism-related offences. Unsurprisingly, family members of some of those convicted by military courts petitioned the Supreme Court, challenging, among other things, the lawfulness and voluntariness of the convicts’ confessions. A few weeks ago, however, the court dismissed all petitions without considering the allegations in any detail. It reiterated the limitations of its review jurisdiction, and noted that since the confessions were recorded by a magistrate and were not retracted, they stood ‘proved’.
The court’s treatment of questions regarding the veracity and voluntariness of confessions in military trials is markedly different from regular criminal cases. Pakistani law and jurisprudence spanning decades clarify that, in recording confessions, the magistrate has to observe a number of mandatory precautions to ensure they are voluntary. The court has also held that a confession would have no legal or evidentiary worth if these directions were not followed.
Courts have affirmed, for example, that confessional statements recorded “after long detention in police custody are viewed with a great deal of suspicion”, and in some cases have discarded judicial confessions made as little as three days after an arrest. Magistrates are also required to provide suspects the guarantee that even if they decide not to ‘confess’, they would be sent to judicial remand and “at no occasion shall be handed over to any police official … because such careless dispensation would considerably diminish the voluntary nature of the confession made by the accused”.
Procedures of ‘military justice’ make a mockery of these safeguards. Suspects remain in military custody at all times, even after the magistrate records their ‘confessions’. They also have no access to the outside world, further compounding their vulnerability not only to torture and ill treatment, but also to other forms of external pressure and coercion. And, reportedly, some suspects were secretly detained by military authorities as far back as 2010, kept in internment centres in Fata for many years before their military trials. Under such circumstances, suspects’ ‘confessions’ before military courts raise serious questions about their legitimacy.
Reports of the US authorities’ treatment of Guantanamo Bay detainees were widely covered and condemned in Pakistan, including by parliamentarians who signed off on the 21st Amendment and the media who celebrated the creation of military courts. Pakistan now has similar facilities full of hundreds of terrorism suspects. Some of them are being tried in secret proceedings by military courts years after their arrest and executed after grossly unfair trials, based on ‘confessions’ made under circumstances that cast severe doubt on their voluntariness. The elicitation and use of such ‘confessions’ are not just a violation of suspects’ rights, they also call into question the verdict of guilt delivered by military courts.
There is no justice in such convictions. The thousands of victims of terrorism in Pakistan deserve better — they deserve truth and justice, which is only possible if the guilt of perpetrators is determined in trials that meet the basic standards of fairness.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn November 13th, 2016