In a statement posted on its social media account, the HRCP said, “In response to today’s announcement that military courts have convicted 25 civilians for the PTI-led 9 May riots, HRCP reiterates its position that no civilian should be tried in a military court under any circumstances.”

The statement added that trials of civilians in military courts violate the fundamental rights guaranteed by the Constitution of Pakistan and the international human rights obligations to which Pakistan is a state party.

“All civilians accused of violence should have been prosecuted in civilian courts through open public proceedings to protect their right to due process and fair trial,” the statement said.

On Saturday, Pakistan jailed 25 civilians over attacks on military installations that took place following the arrest of former Prime Minister Imran Khan on May 9, 2023.

Inter Services Public Relations (ISPR), the military’s public relations wing, confirmed the development and added that a military court had given sentences between two and 10 years of “rigorous imprisonment”, with 14 facing a decade in prison.

Human rights activists have long expressed concerns over trials of civilians in military courts, arguing that the requirements for fairness and due process are not met by these courts.

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Trials of civilians under the Army Act violate Article 10-A of the constitution of Pakistan that guarantees the right to fair trial. Pakistan is the only country in South Asia which allows the trial of civilians in military courts for non-military offences. Despite backlash, the government has chosen to go ahead with this draconian measure. Military courts have badly failed to fulfill the standards of a fair trial. Consider the following:

Article 10-A: The Right to Fair Trial:

Article 10-A regarding the right to fair trial covers several aspects. It is not just limited to criminal charges, but also includes the presumption of innocence of the accused, and prevention of any kind of custodial torture. In 2012, during the contempt of court proceedings against then prime minister Yousaf Raza Gillani, the court was of the view that right to fair trial was indeed a recognized right in our constitution. (PLD 2012 SC 553 2012). Given Pakistan’s Constitutional and political landscape, right to fair trial is a constitutional shield for the victims of institutional aggression, prisoners of conscience, and political workers. 

Here is why military courts do not have the capacity or the unbiased will to conduct a fair trial of civilians especially in this heated political landscape:

Lack of due process:

Due process is the essence of any legal system so that all kinds of legal rights pertaining to the accused are fulfilled. But trials in military courts follow no process. Procedures of these trials are kept hidden and names of the accused being charged in the military courts and their location are not disclosed either. 

Six persons were convicted and sentenced to death and one with life imprisonment of undisclosed offences. It was the inherent right of then convicted persons to be informed of their charges. The venue and time of trials are not disclosed to the public, hence restricting public access to the hearing. (Munir 2020). This principle about the disclosure of the charges against the accused has been mentioned in Liaqat Ali Chughtai. (Liaqat Ali Chugtai V. Federation of Pakistan 2012).

Absence of appellate jurisdiction:

According to reports, the accused persons convicted by the military courts have the right to appeal to a military appellate tribunal. This tribunal is presided by an officer not below the rank of brigadier. The verdict upheld by this tribunal is final. Civilian courts do not have the appellate jurisdiction over the decisions of military courts. They have the power to exercise writ jurisdiction in special cases but due to pressure from unknown forces, the courts have always acted with caution.

Lack of legal Acumen and Impartiality:

The basic credibility of any court of law lies in its impartiality and independence. The judges of military courts are neither impartial nor independent from the influence of their superiors. They must survive in the hierarchy of military and resultantly their decisions are not independent. This principle was confirmed in Sheikh Liaqat Hussain verdict. ( Sheikh Liaquat Hussain v. the Federation of Pakistan 1999). As a result, military courts were declared unconstitutional having no legal effect at all. Moreover, the judges of the military courts do not have legal training nor a legal degree, which is a prerequisite for a judge. 

No Access of Public to Judgements:

A well-articulated, detailed judgement can set legal principles for new cases, and it can be a source of guidance for the lawyers and judges simultaneously. Moreover, if the judgement is made public, the public can get to know about different aspects of law and criminal justice. Many jurists believe that a well-reasoned judgement with cogent arguments is a component of fair trial. But it is unfortunate that the judgements from the military courts have never been made public. Despite multiple requests from the family members of the convicts, the judgements have not even been made available to them. They seek justice while being in the dark about the reasoning given by the judge. 

Violation of International Legislative Documents:

Pakistan is a signatory to the International Covenant of Civil and Political Rights (ICCPR). Article 14 of ICCPR states that everyone is entitled to fair and public hearing by an impartial, competent, and independent tribunal which is established by law following its due course. None of these conditions are fulfilled by a military court trial and it is therefore a clear violation of the standards of International Law. 

Moreover, Article 6 of the European Convention of Human Rights lays down the basic minimum requirements for a fair trial. The hearing should be public and fair i.e., free of all kinds of prejudices. Announcement of judgement should be made publicly except in certain cases. The accused should be presumed innocent before proven guilty. Just like the above violation, same standards of a fair trial are not fulfilled by a military court trial. 

Evidence of Human Rights Abuses in Peshawar High Court Judgement

The late judge Justice Waqar Seth in his landmark judgement of 2018 set aside the punishments of 74 convicts. Several instances of human rights abuses during this whole course of trial was also highlighted and those were the basis for the acquittal of those convicts (Abdul Rashid V. Federation of Pakistan 2018) Justice Seth mentioned is his judgement that the record about the prosecution witnesses was erased and the same defense counsel was provided to many accused. Moreover, a shocking element was that the complete proceedings were based on confessional statements which were taken in isolation with no contact of the accused with their families or counsel. Hence, the honorable court stated that these statements were not admissible because the respective protocol for a confession was not followed. Reference to the case of Muhammad Ismail was given. (Muhammad Ismail v. The State 2017). 

Given the aforementioned concerns, trial of civilians in military courts is purely anti-democratic in nature. There are many instances of injustice by military courts, proving that these courts are not capable of ensuring a fair trial.

Muhammad Abdullah

The writer is a third-year law student at Dr. Muhammad Iqbal Law School, Government College
University, Lahore. He is currently a legal intern at Fair Trial Defenders Legal Aid Cell.

The post Here is Why Trials in Military Courts Can Never Be Fair appeared first on Dissent Today.

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 21^st 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. 

Imaan Zainab Mazari-Hazir

The writer is an Islamabad-based lawyer and human rights activist.

The post Trial By Firing Squad: Prosecuting Civilians in Military Courts is Unconstitutional appeared first on Dissent Today.

According to Khyber Pakhtunkhwa government officials, trials of 16 suspects, who are in police custody for desecrating the statues of Colonel Sher Khan Shaheed and other national heroes in Mardan and other places, would be handled by six military courts.

Their cases would be handled under the Army Act and the Official Secrets Act for their involvement in the attacks, reported Express Tribune.

Earlier, Khyber Pakhtunkhwa police arrested 16 suspects for their alleged involvement in the desecration of memorials of martyrs and attacks on military installations from various locations.

Top military brass and civilian leadership have decided to hold trials of civilians who were involved in the May 9 attacks on military installations across the country following the arrest of PTI chairman Imran Khan in military courts.

Human rights activists have condemned Pakistan Army’s decision to try PTI supporters who attacked civil and military installations under the Pakistan Army Act and Official Secrets Act, saying that using laws meant for military personnel against civilians is against the principles of democracy.

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Last Tuesday, Rangers arrested former prime minister Imran Khan from the premises of Islamabad High Court (IHC) on corruption charges, provoking nationwide protests by PTI supporters. The protesters stormed the military buildings, including Corps Commander Lahore’s residence and Pakistan Army headquarters in Rawalpindi. The protesters set ablaze a number of public and private properties as well.

After the special Corps Commanders Conference (CCC) yesterday, the army announced the “rioters” would be tried in military courts amid strong opposition from human rights defenders.

Human rights activist Usama Khilji urged all citizens to oppose the military’s decision, saying that it is “unacceptable” to try civilians under the laws meant for army.

Unacceptable to try civilians under Army Act & Official Secrets Act. This is in continuation of efforts to establish a military-run set up where constitution & civilian institutions are meaningless.

Every Pakistani must oppose this otherwise all our rights will erode.

— Usama Khilji (@UsamaKhilji) May 16, 2023

Aurat March Lahore “strongly” condemned the decision and said that holding trials of civilians in military courts is against fundamental rights.

“Aurat March Lahore strongly condemns use of the Pakistan Army Act, 1952 & Official Secrets Act, 1923 to crack down on citizens-making an example of protestors for expressing frustration against the state in the context of complete economic, political & constitutional collapse,” it said.

Aurat March Lahore said these trials are against the principles of democracy as they would be held ” with the complete absence of due process” and without transparency and accountability.

Aurat March Lahore strongly condemns use of the Pakistan Army Act, 1952 & Official Secrets Act, 1923 to crack down on citizens-making an example of protestors for expressing frustration against the state in the context of complete economic, political & constitutional collapse
1/4

— ⁧عورت مارچ لاہور⁩ – Aurat March Lahore (@AuratMarch) May 15, 2023

Use of military laws and courts to try civilians, the complete absence of due process, transparency and accountability flies in the face of the pretence of democracy under the current PDM regime.

2/4

— ⁧عورت مارچ لاہور⁩ – Aurat March Lahore (@AuratMarch) May 15, 2023

Military courts to try civilians, rubber stamped by the Supreme Court in 2015, remains a dark stain on Pakistan’s history and we cannot stand by this repeated institutional overreach.

3/4

— ⁧عورت مارچ لاہور⁩ – Aurat March Lahore (@AuratMarch) May 15, 2023

State institutions and monuments are not more important than people’s fundamental rights and lives.
Respect must be earned through actions, not through the force of draconian laws.

4/4

— ⁧عورت مارچ لاہور⁩ – Aurat March Lahore (@AuratMarch) May 15, 2023

“Respect must be earned through actions, not through the force of draconian laws,” it said.

Condemning the decision, lawyer Reema Omer said civilians trial in military courts are “an affront to human rights and fundamental freedoms”.

Military trials of civilians – no matter how horrific the allegations against them – are an affront to human rights and fundamental freedoms

Such measures are used globally by tyrannical regimes as instruments of fear and oppression

Hope better sense prevails pic.twitter.com/7vMncC3LkI

— Reema Omer (@reema_omer) May 15, 2023

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