Pakistan has been a State Party to the International Covenant on Civil and Political Rights (ICCPR) since 23 June 2010. Unfortunately, however, even in 2023, the civilian and military elite have yet to read the Covenant. Article 14 of the ICCPR safeguards the right to equality before courts and tribunals, as well as the right to a fair trial. The Human Rights Committee has observed, in its General Comment No. 32 (on Article 14 of the ICCPR), that “while the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of Article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned” (paragraph 22).
Further, the Committee notes that “the trial of civilians in military or special courts may raise serious problems as far as the equitable, impartial and independent administration of justice is concerned.” Accordingly, “trials of civilians by military or special courts should be exceptional, i.e. limited to cases where the State party can show that resorting to such trials is necessary and justified by objective and serious reasons, and where with regard to the specific class of individuals and offences at issue the regular civilian courts are unable to undertake the trials.”
In Pakistan, court martial trials of civilians are opaque, biased and heavily dependent on the whims and wishes of military high command. There is no meaningful right of appeal; no free and unimpeded access of accused to counsel; no provision of record/documentation to counsel for the accused; and perhaps most concerning of all, military officers take on the role of judges, when they do not possess the requisite training or capacity to do so. Imagine the converse if your mind cannot process the nature or magnitude of the problem: judges being sent to defend our borders with a copy of the Constitution. If that is laughable, so is the idea that those tasked with defending Pakistan against external aggression, have the training or capacity to dispense justice. Different organs of the State/Government have differing responsibilities — for good reason.
Following the horrific cold-blooded murder of Pakistan’s children in the Army Public School (APS) terrorist attack, the nation was traumatized and that trauma resulted in poor decision-making (there were only a handful of people who chose principle over panic – the late Asma Jahangir included of course). If anything was Pakistan’s “9/11”, it was that absolutely tragic mass murder of this country’s children. Anyone who recalls the waves of terrorism that engulfed Pakistan, and the indiscriminate military operations ostensibly aimed at countering that terrorism, will remember that despite us ceding our civil liberties by allowing the 21st Constitutional Amendment, we were not safe then and we are not safe now. In fact, even after our 9/11, we refused to course correct. Ehsanullah Ehsan – the man we were told made it necessary for us to surrender our civil liberties – roams free while a young man who stole a peacock from the Corps Commander House Lahore is languishing in prison. So in the eyes of the state, the value of the Corps Commander’s peacock far outweighs the value of human life – in fact a Pakistani child’s life.
In a June 2016 briefing paper by the International Commission of Jurists (ICJ), titled “Military Injustice in Pakistan,” it was observed that “Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards.” It would appear that Law Minister Adam Namer Tarar was in a deep slumber from 2015 till date because there seems to be no other reasonable explanation for why he is actively misleading the public today with entirely false statements claiming that Pakistan’s military courts comply with international minimum protections for fair trial and due process. This is not only disingenuous but also in breach of the Minister’s oath, which places on him the obligation to “do right to all manner of people, according to Law, without fear or favour, affection or ill-will.” That “all manner of people” includes all of Pakistan’s citizens, irrespective of whether they are Baloch students, activists of the Pashtun Tahaffuz Movement (PTM) or even political workers of the Pakistan Tehreek-e-Insaaf (PTI).
In Pakistan, court martial trials of civilians are biased and heavily dependent on the whims of military high command. There is no meaningful right of appeal, and most concerning of all, military officers take on the role of judges.
Such barefaced defense of the unjustifiable isn’t limited to the Law Minister. The Government machinery has gone into overdrive to defend military court trials of civilians, which they themselves will likely be the victims of a few years from now. One must remember to ask the Prime Minister’s Special Assistant Mr. Atta Tarar how he feels about the “three rights of appeal” in that eventuality. After all, in Pakistan, we only seem to care if and when we become victims of an injustice.
In a country where even the mildest of criticism of the military high command can result in trial by court martial, it is alarming that the entire civilian set up (that holds power as a trust for the people of Pakistan) is performing mental gymnastics to deal a final blow to any prospect of civilian supremacy or control.
Action against May 9 rioters
The acts that took place on 9 and 10 May are nothing more than offences triable under the Pakistan Penal Code – they neither require trials by anti-terrorism courts nor court martial trials. To suggest that acts of arson or attacks on public property – criminal offenses under the Penal Code – require civilians to be subjected to trials by military officers, who do not even have basic understanding of the law, is beyond absurd and dangerous.
One need only recall the enforced disappearance and secret trial of human rights defender, Idrees Khattak, resulting in his continued incarceration. In November 2019, Idrees Khattak was forcibly disappeared and there was no information available on his fate or whereabouts up until several months later. In June 2020, it was discovered that Idrees Khattak was in the custody of the agencies working under the Ministry of Defence, in connection with a case under the Official Secrets Act. What followed exactly, no one knows (due to the inherent non-transparency and secrecy that surrounds military courts which is not denied but in fact justified on grounds of “confidentiality” and “national security”). However, Idrees Khattak was tried and sentenced to fourteen years rigorous imprisonment. He is not the only civilian who has been subjected to biased and opaque court martial proceedings. In Pakistan, where all power rests with Rawalpindi (with zero accountability for exercise of that power), there can never be even the remotest possibility of fair trial of civilians by court martial.
Have civilian courts failed to serve justice?
There is no weight in the argument being deployed by the civilian face of the present martial law to justify court martial of civilians. However, so that the uninterrupted flow of disinformation can be countered, the same is addressed below. The main (and rather audacious) line of argument adopted by those who lectured us on giving “respect to the vote”, is that the ordinary courts have failed to dispense justice and so there is a need for military courts.
First, this flawed argument presumes (incorrectly) that military courts ensure fair dispensation of justice. This is contrary to the facts, research, judicial record and our history. Second, these courts which are being looked down upon by the civilian leadership are the same ordinary courts that are flooded each time it rains, where lawyers, judges and litigants alike sit for hours on end, covered in dirt and sweat in a tiny court room, functioning within a system that is heavily overburdened as a result of both frivolous/fake cases by the State against its own citizens and a refusal by the very same State to allocate sufficient funds/resources for functioning of the judiciary. Further, these are the same courts that rely on effective and timely investigations to proceed. How effective will those investigations be when investigating officers carry out the same on their own personal expense (with no proper reimbursement) because each successive government refuses to treat them as public functionaries, deserving of dignity in their work? Where for several decades the bulk of this country’s resources have been misallocated towards defense and defense-related expenditures, and luxuries for the ruling elite, what court system can deliver justice in these circumstances? More importantly, is it even reasonable to have this expectation when the civil-military imbalance has resulted in complete disintegration of all civilian institutions? And finally, with constant interference in the judiciary, brazen flouting of court orders, and intimidation of judges, by the military establishment, are we really to expect that those who dismantled our civilian structure will adhere to fair trial and due process guarantees in a system run entirely on their whims and wishes?
When the ordinary criminal law punishes arson, rioting and attacks on public property, there is no cogent reason why these offenses should be tried in anti-terror courts or by court martial.
There is no dispute over the poor functioning of our ordinary courts, however, military courts are not – and can never be – a solution to the problem because they are in fact an illustration of the State’s skewed priorities that have caused the problem in the first place. It is truly baffling why the civilian government is insistent on defending what is glaringly unconstitutional. Is the desire to completely dismantle and punish the PTI really greater than the desire for civilian supremacy? And is that desire to dismantle still greater than the desire for self-preservation of civilians/politicians in the long run?
Amidst all the propaganda and miscalculated defense of military court trials of civilians, it is pertinent to remember that when the ordinary criminal law protects against, and punishes, arson, rioting and attacks on public property, there is no cogent reason why these offenses should be tried in anti-terror courts or by court martial. To do so is also contrary to law settled by the Supreme Court of Pakistan, and in contravention of Article 4 of the Constitution, as held in the Waris Ali Case (2017 SCMR 1572): “The phrase ‘to be treated in accordance with law’ includes that every citizen must be dealt with according to law applicable to him, subject of course to the facts and circumstances of the case. If any citizen is triable under the ordinary penal law of the land, then treating him harshly under special law, not clearly applicable to him, would be a violation of the command of the Constitution.”
Unfortunately however, the theater of the absurd continues in Pakistan as the climate of fear is at an all-time high. Politicians scramble to snatch the polish out of each other’s hands while the boots reward such servility by momentarily lifting their weight off the polisher’s neck. Tomorrow, each one of the politicians knows that the might of the boot will once again endanger their very own existence, but the choice is pettiness and vengefulness over reason. The delight of watching their opponents suffer (like they suffered in the past) is too good an opportunity to miss. And so it goes on and on, but real power (and exercise of that power with impunity) remains with the military establishment.
The writer is an Islamabad-based lawyer and human rights activist.
