ON Thursday, the administrative judge of Anti-Terrorism Courts, Lahore, directed handing over the custody of 16 people arrested in relation to the May 9 riots to the military for trial under the Pakistan Army Act (PAA), 1952, and Official Secrets Act, 1923. The order was made on the request of a commanding officer of the military, stating an initial investigation prima facie found the accused involved in various offences under the OSA.

This development came days after the military leadership expressed “firm resolve” that those involved in “heinous crimes against military installations and personnel/equipment” — including civilians — will be “brought to justice through trial under relevant laws” including the PAA and the OSA. The government, too, endorsed this decision.

Allowing military courts to try civilians — including certain members/supporters of the PTI — for their alleged involvement in the May 9 riots is a glaring assault on fundamental freedoms and democracy in the garb of “accountability” and the “rule of law”. Section 2 of PAA allows civilians to be tried by military courts (courts martial) who are accused of: 1) “Seducing or attempting to seduce any person subject to this Act from his duty or allegiance to government”; or 2) having committed an offence under the OSA “…in relation to the … military of Pakistan.”

The OSA relates to offences such as spying, taking photographs of notified “prohibited” places, “harbouring spies”, and attempting/abetting such offences. It carries harsh penalties — including the death penalty — for some crimes. Claims by the government and military that allegations of “attacking military installations” by civilians in itself is sufficient for military trials under the Army Act or the OSA, therefore, are misleading and not supported by the law.

A duly reasoned, written judgement is an essential component of a fair trial.

Further, how offences under the OSA are prima facie made out against those whose transfer of custody to the military has been allowed remains unclear.

More importantly, even if the authorities frame charges against the accused under the OSA to bring their cases within the Army Act’s ambit, such trials would be in blatant violation of Article 10A of the Constitution that guarantees fair trial, as well as Pakistan’s human rights obligations under international law.

Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards for a number of reasons.

First, military court judges are military officers who are a part of the executive branch and do not enjoy independence from the military hierarchy. They are not required to have judicial or legal training, and do not enjoy any security of tenure, which are prerequisites of judicial competence and independence.

Second, military courts do not give detailed, reasoned judgements and are not required to hold open trials. A duly reasoned, written judgement is an essential component of a fair trial. Even in cases in which the public may be excluded from the trial, the judgement, including the essential findings, evidence and legal reasoning must be made public (except in certain cases such as for the respect of privacy of the parties).

Third, the PAA bars civilian courts from exercising appellate jurisdiction over decisions of courts martial. Courts have held they may use their extraordinary writ jurisdiction to hear cases related to military courts where “any action or order of any authority relating to the Armed Forces of Pakistan is … either coram non judice,mala fide, or without jurisdiction.”

Contrary to claims made by the government, under Pakistani law the scope of such review is severely limited. Courts too have also interpreted their review jurisdiction narrowly. In the context of review petitions filed by family members of civilians convicted by military courts, the Supreme Court held the circumstances in which people were arrested, even if they were forcibly disappeared and kept in secret detention for years, was not relevant to its review jurisdiction. Similarly, the Peshawar High Court in another case held the manner of the “confessions made by the accused, under the ordinary criminal jurisprudence would seriously diminish the evidentiary value” but in view of the limited scope available to the high courts, they could not interfere in the convictions handed down by military courts on this basis.

UN human rights bodies too have raised serious concern about military trials of civilians in Pakistan. In May 2017, the UN Committee against Torture said the military trials of civilians were concerning in view of “the lack of independence of military court judges, which are within the military hierarchy, and practices of such courts including holding closed trials”.

In July 2017, the UN Human Rights Committee too recommended Pakistan “review the legislation relating to the military courts with a view to abrogating their jurisdiction over civilians and their authority to impose the death penalty” and “reform military courts to bring their proceedings into full conformity with Articles 14 and 15 of the covenant in order to ensure a fair trial.”

Gross miscarriage of justice by military courts is evident in the case of Idrees Khattak — a prominent human rights defender — who was forcibly disappeared in November 2019. His whereabouts remained unknown until June 2020, when military authorities informed the Commission of Inquiry on Enforced Disappearances he was being tried by a military court under the PAA and OSA. On Dec 2, 2021, it was reported in the media Idrees Khattak had been convicted and sentenced to 14 years’ imprisonment under the PAA and OSA for offences related to spying. The military court’s judgement against him has not been made public. The Peshawar High Court has declined to intervene.

Victims and the people of Pakistan have the right to truth and justice in relation to the May 9 riots and the destruction of public and private property, but this is only possible after perpetrators are convicted after transparent, fair trials. Opaque, secret and unjust military trials of select accused may be used to extract vengeance, but there should be no doubt they have little to do with ensuring accountability or the rule of law.

The writer is a legal adviser for the International Commission of Jurists.

reema.omer@icj.org

Twitter: @reema_omer