Under Pakistani law, civilian terror suspects - in line with international standards - fell under the jurisdiction of civilian courts. But in January 2015, the law was changed (through the 21st Amendment to Pakistan’s Constitution and amendments to the Army Act, 1952) to allow military courts to try people, including civilians, for offences related to “terrorism”. These amendments were a short-term measure only, lasting for two years, until the civilian courts could be improved to address the challenges of dealing with terrorism related cases. Both amendments are set to expire on the 6th of January 2017 (although there is always a possibility that they could be renewed).
With just six months left before the expiration of the 21st Amendment, it is important to see if military courts have performed as they were promised to. Are they necessary? Are they legitimate? And are they effective?
Factual and legal analysis based on the material available to the public shows that military courts fail on all these grounds. To understand this assessment, it is crucial to examine some of the myths that have been circulating in public speeches, the media and even in parliament to justify the use of military tribunals to put civilians on trial for terrorism-related offenses.
12 out of the 415 people hanged were convicted by military courts. The remaining 403 were convicted by civilian courts
MYTH: General Raheel Sharif can refer any case of his choice to military courts for trial
Under the 21st Amendment and the amendments to the Army Act, 1952, military courts can put civilians on trial only if those people: (1) claim to, or are known to, belong to “any terrorist group or organization using the name of religion or a sect”; and (2) are accused of carrying out certain acts of violence and terrorism specified in the Army Act, 1952, and the Protection of Pakistan Act, 2014.
Civilians can be put on trial in a military court only if both these conditions apply. So, for instance, members of Baloch separatist or nationalist groups charged with committing acts of violence and terrorism cannot be tried by military courts because they do not meet the first condition: “using the name of religion or a sect”. Similarly, military courts do not have the jurisdiction to try police officials accused of extrajudicial killings (as demanded by Dr Tahir-ul-Qadri for the “Model Town case”) or members of the government for corruption and money laundering (such as the “Panama Leaks”), because police officers and government officials accused of corruption are not alleged to be members of “terrorist organisations” using the name of “religion or a sect”.
The cases referred to the military courts are initially selected by committees made up of civilians and military officials in each province. These provincial “apex committees” refer selected cases to the Ministry of the Interior for final approval. The Ministry of the Interior checks the list submitted by the provincial apex committees and sends a final list of cases to the military for trial.
The criteria used by the provincial committees and the Ministry of the Interior for the selection of such cases have not been disclosed, but all cases selected by the apex committees have to meet the two conditions set in the law.
MYTH: Civilian courts are incapable of conducting terrorism-related trials
While it is true that civilian anti-terrorism courts have acquitted a high percentage of people accused of terrorism-related acts (ranging from 80 percent to 90 percent), the reasons for this are more complex than the frequently cited myth that civilian courts are “incapable” of effectively conducting terrorism-related trials and bringing terror suspects to justice.
A major problem in convicting perpetrators of terrorism in Pakistan is that are major flaws in prosecutorial efforts and police investigations, which often do not provide the evidence necessary to meet legal thresholds for criminal conviction.
For instance, in July 2011, in a much-criticised decision, the Supreme Court granted bail to Malik Ishaq, the leader of Lashkar-i-Jhangvi, after he had spent 13 years in jail. The reason behind the grant of bail was not fear or sympathy, but lack of admissible evidence. (Malik Ishaq was allegedly extra-judicially killed by police in July 2015.)
There is no tension between upholding human rights and ensuring people's security from terrorism
In another case, Sufi Mohammad, a cleric from Swat and chief of the banned Tehreek Nifaz-i-Shariat-i-Mohammadi (TNSM), was acquitted of sedition and incitement to violence charges by an anti-terrorism court in April 2015. The reasons given for acquittal included an unexplained delay of three months by the police in lodging a First Incident Report (FIR) after the alleged incident and the failure of the prosecution to produce any recordings or evidence of the allegedly seditious speech. (He is still facing trial for other charges.)
Despite these constraints, civilian courts, including anti-terrorism courts, are conducting trials of terrorism-related cases on a regular basis. Mumtaz Qadri, for example, was convicted for the murder of former Governor of Punjab, Salman Taseer, by an anti-terrorism court.
Civilian courts can do a much more effective job of trying people accused of terror offences if judges, witnesses and other people associated with the trial are provided better security and if courts can cut down on unnecessary delays in trials. However, it is incorrect to say regular courts are “incapable” of conducting terrorism trials.
The government and the judiciary were supposed to have used the time since January 2015 to bring about these reforms. So far, such reforms are nowhere to be seen.
MYTH: Military courts are convicting “terrorists” acquitted by civilian courts
Since January 2015, military courts have convicted 81 people of terrorism-related offences. They have sentenced 77 people to death and four to life imprisonment sentences.
Information about the cases tried by military courts is not publicly available. However, in the few cases where details are available, military courts have convicted people in two categories of cases: (1) cases pending in ordinary criminal courts or anti-terrorism courts that were transferred to military courts for trial; and (2) people who were detained at “internment centers” in the Federally Administered Tribal Areas (FATA) or other undisclosed locations (many of these people are alleged to have been subjected to enforced disappearance by law enforcement agencies, i.e. the so-called ‘missing persons’).
There is no information to show that even a single person convicted by military courts had been at liberty after being previously acquitted by civilian courts. In any event, such prosecutions would likely be unlawful, as a violation of the prohibition of double jeopardy (trying a person twice for the same offence).
Despite constraints, civilian courts are conducting trials of terrorism-related cases on a regular basis
MYTH: Military courts have executed “hundreds of terrorists”
According to the Human Rights Commission of Pakistan (HRCP), at least 415 people have been hanged in Pakistan since the government resumed executions in December 2014 after a six-year period during which nobody had been executed (with the exception of Muhammad Hussain, a soldier who was hanged in 2012).
Only 42 out of the 415 (almost 10 percent) of the people hanged had been convicted for terrorism-related offences. The remaining 90 percent were convicted for ordinary crimes such as murder motivated by personal interests.
Twelve out of the 415 people hanged were convicted by military courts. The remaining 403 people were convicted by civilian courts and their death sentences were confirmed by high courts or the Supreme Court.
MYTH: The Supreme Court is setting “terrorists” convicted by military courts free
The Supreme Court has not acquitted or given bail to any of the people convicted by military courts for terrorism-related offences. Neither have any of the provincial high courts.
The Supreme Court is currently considering petitions made by the families of at least 17 convicts sentenced to death by military courts. These families have challenged the convictions and death sentences given to their sons, brothers and husbands on the grounds that military court proceedings were conducted in violation of their right to a fair trial. Specific violations alleged by the petitioners include: denial of the right to counsel of choice; failure to disclose the charges against the accused; and failure to give convicts copies of judgments with reasons for the verdicts and sentences. In some cases, the petitioners have alleged the convicts were subjected to enforced disappearance and torture and other ill-treatment, and in at least two cases, the petitioners have also alleged that the convicts were children under the age of 18 at the time they were arrested by law enforcement agencies.
All of these allegations, if true, violate the rights guaranteed to suspects under the Pakistan Constitution and international treaties ratified by Pakistan.
The Supreme Court has temporarily stayed the executions of the convicts in all cases. The Chief Justice of Pakistan constituted a five-member larger bench of the Supreme Court to hear the petitions in February 2016. Judgments on the petitions are pending. All convicts are still in the custody of the military.
MYTH: Civilians courts have no jurisdiction over cases tried by military courts
It is also a fundamental principle of the rule of law that a higher judicial body must be able to review the decisions of courts, whether military or civilian, at least on matters of law.
The Army Act does not allow civilian courts to hear appeals against judgments delivered by military courts, and Article 199(3) of the Constitution (relating to the jurisdiction of high courts) prevents high courts from intervening in cases relating to people being held by the military.
However, over the years, the courts (including the Supreme Court) have explained that under Article 199 of the Constitution, high courts may review judgments of military courts if there were gross procedural irregularities in the proceedings; if the military court lacked jurisdiction to decide a particular case; or if the case was decided in bad faith.
In addition, Article 184(3) of the Constitution gives the Supreme Court power to intervene in cases of public importance related to human rights.
The 21st Amendment did not restrict these constitutional powers of the high courts or the Supreme Court.
MYTH: “Terrorists” do not believe in the Constitution so the right to a fair trial does not apply to them
First, ensuring respect of the rule of law and fair administration of justice is not only for the benefit of people accused of crime, but for society as a whole. Once fair trials are denied to terror suspects, they can be just as easily be denied to any others who come under the prosecuting arm of the State.
Second, every person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law. Therefore, individuals accused of terrorism-related offences tried by military courts are “suspects” till they are found guilty after a trial that affords them basic fair trial rights. They are not “terrorists”.
Third, suspected terrorists have a right to a fair trial, no matter how horrific the acts they are alleged to have committed. Indeed, the more serious the crimes, the higher the standards of justice must be, especially to ensure that the victims of terrorism receive the truth, justice and a proper remedy. The right to a fair trial is guaranteed under Article 10A of Pakistan’s constitution as well as Article 14 of the International Convention on Civil and Political Rights (ratified by Pakistan in 2010). This right applies to all individuals, at all times, everywhere in the world - even during times of war or states of emergency.
Providing a fair trial is also crucial because it ensures that victims or survivors of terrorism (and the public) are confident that the trial has produced the truth and led to justice.
The International Commission of Jurists (ICJ) and other human rights groups have found that trials before Pakistani military courts are in clear violation of national and international fair trial standards.
MYTH: The State cannot protect people from “terrorism” if it upholds human rights
There is no tension between upholding human rights and ensuring people’s security in the face of terrorist threats. Upholding human rights is not a matter of being “soft” on terrorism; on the contrary, countering terrorism is itself a human rights objective, since States have an obligation to protect people against terrorist acts, including preventing, investigating, punishing and redressing the harm caused by such acts.
Numerous examples from around the world demonstrate that disregard for human rights fuels cycles of terrorism and counterterrorism, and that human rights are necessarily a part of the solution in situations of conflict and instability. Human rights law provides States with the framework that allows them to respond effectively to even the most serious of crises, including “terrorism”. Therefore, human rights are not, and can never be, a luxury to be cast aside at times of difficulty.
However, in practice, in many countries around the world, the fear of terrorism has been allowed to override the need to uphold human rights. For some States that routinely abused human rights in the past, counterterrorism is simply the newest excuse behind which to hide. For other States, counterterrorism is claimed to be the justification for departing from long-cherished norms. These practices must be resisted.
The writer is a legal adviser for the International Commission of Jurists. She may be reached at reema.omer@icj.org
Twitter: reema_omer