LAST month, the Peshawar High Court set aside the convictions of over 70 people who were tried by military courts on various terrorism-related charges. The court ordered their release after finding the proceedings had been conducted in bad faith and that there was effectively no evidence against them.
The judgement confirms concerns raised by human rights groups that proceedings of military courts violate basic fair trial standards under the Constitution as well as international law.
The court’s findings demonstrate how ‘speedy justice’ — the ostensible ‘objective’ of empowering military courts to try civilians for certain terrorism-related offences — has come at the cost of basic principles of fairness. The state has not only failed to prove the guilt of the accused before independent, impartial tribunals, but has also perpetrated human rights violations in the process.
First, the court questioned the competence of the defence counsel of the accused. Under the Army Act, accused persons have the right to engage private civilian defence counsel at their expense. The court found it odd that only one lawyer from Punjab was engaged by all accused persons. And even though families of a number of convicts had engaged “costly and senior counsel” to challenge their convictions in review before the high court, during their trials they had allegedly “consented” to be represented by the same defence counsel with only five or six years’ experience.
Speedy justice has come at the cost of a fair trial.
It also expressed concern that it was not clear in what language the counsel communicated with the accused, and whether they were allowed to consult with him confidentially.
It characterised the defence counsel as a “dummy”, and held that the trials were a “complete prosecution show”, where the accused were “denied of their legal and fundamental right” to engage counsels of their choice and present a defence.
Second, the court questioned how the primary source of evidence was “confessional statements” in all cases. It then described in detail the way in which these were recorded: confessional statements of all defendants were in the same handwriting and in the same “tone and style”; accused persons were handed back to military authorities after their statements were recorded; a number of “confessions” were recorded years after the accused were first arrested; and the accused were detained in internment centres before and after their “confessions” where they had no access to their families, lawyers, or the outside world.
This raised concern that the “confessions” were “concocted”, and possibly obtained after torture.
The court observed that Pakistani law and jurisprudence spanning decades clarifies that in recording confessions, the magistrate has to observe a number of mandatory precautions to ensure they are voluntary, and that a confession would have no legal or evidentiary worth if these directions were not followed.
Applying the law on confessions to the facts of the case, the high court held that such safeguards had been flouted in proceedings before military courts. As a result, the statements could not be relied on as evidence to secure convictions.
Third, the court highlighted the link between enforced disappearances and proceedings before military courts. It described how a number of accused were picked up by security authorities as far back as 2009 and kept in secret detention for many years before their military trials. Even when questioned by the courts, state agencies kept denying any knowledge of their whereabouts, until their names appeared in their press statements about people convicted and sentenced to death. The court indicated that in many cases, the proceedings appeared to have been a way of giving “legal cover” to the practice of enforced disappearances and secret detentions in internment centres.
Finally, it questioned the rehearsed nature of the trial proceedings; the arbitrariness in sentencing; and the secrecy surrounding the entire process — from registration of criminal complaints against the accused to the final judgement against them.
These findings led the Peshawar High Court to conclude that these were cases of “no evidence” and were “based on malice of facts and law”. In the past, the apex court dismissed review petitions in cases with near identical facts, ostensibly paving the way for the execution of at least 56 people after military trials.
It is a damning indictment of the state that instead of reconsidering the trial of civilians in military courts and the procedures of such proceedings under the Army Act, the government has challenged the judgement. Meanwhile, the Supreme Court has suspended the operation of the verdict pending the hearing of the appeal.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, November 11th, 2018