In a move described by one lawmaker as the "the last breath taken by Parliament", Pakistan legalised military court trials of terror suspects for a period of two years in January 2015, soon after terrorists killed 144 people, mostly children, at an Army Public School (APS) in Peshawar.
An All Parties Conference (APC) gave the green light for the amendments to the Pakistan Army Act to extend its jurisdiction for speedy trial of cases under specified acts and provide the constitutional cover with a sunset clause of two years from the date of enactment.
At first the 21st Amendment, as it is popularly known, was met with much debate, but over time, military courts weaved themselves in to the fabric of Pakistan’s criminal justice system.
Since February 2015, a total of 274 individuals have been convicted in military courts. So far, the army has sentenced 161 individuals to death, 12 of whom have been executed and 113 have been given jail terms (mostly life sentences).
There are roughly 11 military courts that have been set up across Pakistan; three in KP, three in Punjab, two in Sindh and one in Balochistan.
With the sun today having set on Pakistan’s military courts, Dawn.com recaps this paper's position against military courts with excerpts of past articles.
There are no elaborate procedures or fanfare that may lead the accused to military courts.
In April 2015, Sabir Shah disappeared from Lahore’s central jail. His family and lawyers did not know where he had gone. Five months later, the family was informed via an ISPR press release, that Sabir had been awarded a death sentence by the military courts.
Sabir’s lawyer claims he is unaware of the evidence that may have been used to convict his client. Sabir was originally indicted on murder charges. The trial was underway at the civilian courts when he was mysteriously moved to a military internment centre.
No right to appeal in civilian courts
The right to appeal is an essential component of a free and fair trial. Military court convicts are not afforded the option to appeal in civilian courts.
According to the PAA (1952) those convicted by military courts can only appeal in the Military Appellate Tribunal. However, convicts can have decisions of the military courts “reviewed” by civilian courts under Section 7.2.3 of the PAA.
In August 2016, families of 16 civilians found guilty by the military courts filed a review petition at the Supreme Court of Pakistan in what turned out to be an iconic hearing.
“These trials before the military courts need to be proceeded again after sharing complete evidence and the case record with the accused and also ensuring complete freedom to the accused to engage a counsel of his choice,” argued Asma Jahangir before a five-judge Supreme Court bench, headed by Chief Justice Anwar Zaheer Jamali.
The Supreme Court bench, hearing the said petition, dismissed the claim that military trials had been in contravention with the standards of a free and fair trial guaranteed by the Constitution.
Offences for which military courts can try civilians
Attacking military officers or installations
Kidnapping for ransom
Possessing, storing or transporting explosives, firearms, suicide jackets or other articles
Using or designing vehicles for terrorist attacks;
Causing death or injury
Possessing firearms designed for terrorist acts;
Acting in any way to “over-awe the state” or the general public;
Creating terror or insecurity in Pakistan;
Attempting to commit any of the above listed acts within or outside of Pakistan;
Providing or receiving funding for any of the above-listed acts; and
Waging war against the state.
Military court trials are not transparent
One of the many cornerstones of a fair trial is the provision of a detailed written judgment, at the conclusion of the trial.
Conventionally, judges have a duty to explain the reasoning behind their verdicts. However, in military courts there is no guarantee that such a document would be made available. Even the families of military court convicts are not made privy to the essential findings of the cases.
Secrecy in military trials goes deeper than just holding back a duly reasoned, written judgment.
The International Commission of Jurists (ICJ) — a collection of 60 judges from around the world —continues to keep a critical eye on Pakistan’s justice systems. In a strongly worded briefing paper published by the ICJ in 2016, it is claimed that “the government and military authorities have failed to make public information about the time and place of their trials; the specific charges and evidence against the convicts; as well as the judgments of military courts including the essential findings, legal reasoning, and evidence on which the convictions were based.”
It goes on to state that “human rights organisations, trial monitors, journalists and even family members of the accused persons tried by military courts have been denied access to military courts’ proceedings.”
The Pakistan Army Act 1952 dictates that military trials could be held at “any place whatever”.
In addition, there is no guarantee for public trials, or for the trial records to be made public. As the saying goes; “Not only must justice be done; it must also be seen to be done.”
Transparency in court proceedings insulates the trial from allegations of bias. This too, is a right that is denied to civilians appearing in Pakistan’s military courts.
Read more: Military injustice in Pakistan
Military judges not required to have a law degree
According to Principle 10 of the United Nations’ Basic Principles on Independence of the Judiciary, “persons selected for judicial office shall be individuals of integrity and ability with appropriate training or qualifications in law. Any method of judicial selection shall safeguard against judicial appointments for improper motives.”
In Pakistan, military court judges are military officers very much a part of the military chain of command. There is no requirement for them to have a law degree or a legal background, which are prerequisites of judicial competence and independence.
Higher than 90 per cent “confession” rate
By December 2016, according to the ISPR’s press statements, 135 out of 144 people convicted in military courts had "confessed" to their crimes. That the confession rate is higher than 90 per cent points towards a disturbing possibility; that confessions may be elicited using questionable interrogation methods.
The ICJ notes; “Suspects tried by military courts 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 and kept in internment centers in the Federally Administered Tribal Areas (FATA) before they “admitted” to their crimes during their military trials.”
Read more: Suspect confessions
Rendering regular courts redundant
Far from strengthening civilian court structures, the government looked towards the military to dispense justice following the APS attack in December 2014.
This is indicative of not just the government’s mistrust in the civil judiciary but also paints a grim picture of the sanctity of a Pakistani’s constitutional rights.
Conventionally, the police make arrests and register cases either on their own, or following complaints from aggrieved parties. The police’s investigation and findings are then reviewed and challenged in the courts before a decision is made. In military courts however, the army is the investigator, judge and prosecutor – something that is alarmingly uncharacteristic of a free and fair justice system.
ISPR, the only source of information
ISPR press releases are the main source of information on military trials.
Today Chief of Army Staff confirmed death sentences awarded to another 13 hardcore terrorists, who were involved... https://t.co/ZhQ7wU0rKm— ISPR (@ISPR_Official) March 15, 2016
On Sep 21 2015, Qari Zubair Muhammad was awarded the death sentence by a military court. He was arrested earlier in 2009 in connection with a terrorist attack at a mosque in Nowshera. His lawyer Khalid Afridi disclosed that Qari Zubair’s family only came to know about his death sentence through an ISPR press release.
Trying minors, retrospectively
In August 2009, Haider Ali was arrested by military authorities. For six years, the 10th grader’s family was unaware of his whereabouts. He was reportedly 14 years old at the time of arrest. It was discovered through an ISPR press release that Haider had been sentenced to death. His involvement in “committing heinous offences related to terrorism,” had been ascertained by the military prosecutors.
Haider’s mother took the matter to the Peshawar High Court, where she requested the court to review her son’s verdict. As an answer to the question of Haider’s juvenility, the additional attorney general argued that the Army Act, after seeing amendments, superseded all other laws and maintained that military courts could legally try individuals suspected of committing terrorism-related offences, even if they were under the age of 18 at the time the alleged offence was committed, or had been arrested before the 21st amendment was passed.
Read more: Children and military courts
Pakistan, the only country in South Asia to allow the military to try civilians
Military courts are not an anomaly. Several armies around the world have established their own systems for trying military personnel for military offences. However, in Pakistan the 21st amendment, coupled with the amendments made in the Pakistan Army Act 1952 have placed the country in an exceptional category that allows its military to take civilians to task behind closed-door trials. In South Asia, Pakistan is the only country where the military has been given such powers.
Below is an ICJ publication that rounds up the past two years of military trials.
Compiled from Dawn and ICJ reports by Hasham Cheema
Header illustration by Zehra Nawab/Herald; composite by Dawn.com