MILITARY INJUSTICE IN PAKISTAN

• On an average 3 convicts are executed almost every week in Pakistan by Military Courts  
• Pakistan is the “Fifth Most Prolific Executioner Country” in the World.  
• Front runners are China, Iran, Saudi Arabia, and Iraq.
   

By V K GAUR

New Delhi, February 2, 2019: Frequent execution of death row inmates has earned unique distinction for Pakistan. Between December 2014 and February 2018, on average three death row inmates,  convicted by military courts of Pakistan, were executed in almost every week making Pakistan the “fifth most prolific executioner country” in the world. Front runners are China, Iran, Saudi Arabia, and Iraq.

 In 2015 Military courts were created to try terrorists after a terrorist attack on Army Public School in Peshawar. The Constitution of Pakistan and Army Act were amended to extend the jurisdiction of military courts over civilians for a duration of two years. The government planned to create the necessary infrastructure and facilities in the civil courts in two years. Nothing was done by the Pakistan Government and the Parliament extended the tenure of military courts for further two years- up to March 19. Over two years ago International Commission of Jurists (ICJ)in its report pointed out the gross violation of human rights and unfair, opaque and illegal trials.

The military courts of Pakistan have referred 717 cases of hardcore terrorists out of which 646 have been decided. According to the data of the International Commission of Jurists(ICJ) conviction rate of Military courts was above 99 percent. The data also reveals that only five accused of terrorism have been acquitted by the Military Courts. The fate of the remaining 71 pending cases is still uncertain as a decision about the future of these courts is yet to be taken by the parliament. The ruling party that survives on the mercy of the ISI and Pak army is most likely to vote in favor of the extension of the term beyond March this year.

According to media reports, Imran government is currently feeling the pulse of opposition parties to get consensus on the extension of military courts for the next two years. Some political parties’ leaders have expressed their reservations on giving an extension to the military courts.

However, the leading opposition party PML-N’s President Shahbaz Sharif has recently hinted that his party might support the military court’s extension. PPP Chairman Bilawal Bhutto Zardari while talking to media gave negative signals. In January this year, the Imran Cabinet reportedly approved a proposal to extend the tenure of military courts for another two years.

Pakistan lifted the moratorium on the death penalty after the terrorists’ attack on Army Public School Peshawar to execute the hardcore terrorists only. However, surprisingly almost 90 percent of the death row prisoners executed from December 2014 to February 2018 were not terrorists.

According to ICJ, from December 2014 to February 2018, 86 terrorists of Tehrik-e-Taliban Pakistan were awarded death sentence. Similarly, 05 accused terrorists of Toheed wal Jihad Group, 08 members of Al Qaeda, 07 members of Sepah-e-Sahaba, 03 members of Lashkar-e-Jhangvi, 07 Lashkar-e-Islam, 02 members of Harkat Ul Jehad-e-Islami, one member of Jaish-e-Muhammad and 67 members of other proscribed organizations were awarded death sentence by the military courts.

Civilians were tried to attack an Army Public School in Peshawar; an attack on a bus carrying members of the Muslim Ismaili community near Safoora Chowk in Karachi; an attack on a bus carrying Shiite Muslim Hazara pilgrims in Mastung; the killing of activist Sabeen Mahmood; an attack on Saidu Sharif Airport; and other violent attacks against law enforcement agencies. The precise charges for which they have been convicted are not possible to identify because of the opacity of the procedures and the failure of the military authorities to disclose information related to the cases, including judgments.

After the 21st Amendment and amendments to the Army Act, 1952, military courts have authority to try persons who claim to, or are known to, belong to“any terrorist group or organization using the name of religion or a sect” and

carrying out acts of violence and terrorism, including:

• Attacking military officers or installations;

• Kidnapping for ransom;

• Possessing, storing or transporting explosives, firearms, suicide jackets or

other articles;

• Using or designing vehicles for terrorist attacks;

• Causing death or injury;

• Possessing firearms designed for terrorist acts;

• Acting in any way to “over-awe the state” or the general public;

• Creating terror or insecurity in Pakistan;

• Attempting to commit any of the above-listed acts within or outside of

Pakistan;                                                                                                                              

• Providing or receiving funding for any of the above-listed acts; and

• Waging war against the state.

• Crimes against minorities;

• Killing, kidnapping, extortion, attacks or assaults on government officials,

members of the judiciary, foreign officials, tourists, media personnel,

social workers or “other important personalities”;

• Destruction of or attacks on energy facilities, gas or oil pipelines, aircrafts

and airports, national defense materials and institutions, and educational

institutions; and

• Illegally crossing national boundaries “in connection with” any of the above-mentioned offenses.

Soon after the 21st Amendment was passed and changes to the Amy Act of 1952enacted, more than a dozen petitioners, including the Pakistan Bar Council, theSupreme Court Bar Association, and the Lahore High Court Bar Association, challenged before the Supreme Court the lawfulness of courts-martial trying civilians.

The petitioners argued that the amendments were incompatible with the independence of the judiciary; the right to a fair trial; and the principle of separation of powers recognized by Pakistan’s Constitution.

A full bench of the Supreme Court delivered its judgment in August 2015. By a  13-4 majority, the Court confirmed its power to strike down constitutional

amendments. However, a majority of nine of the 17 judges of the Supreme Court held that the trial by military courts of individuals accused of terrorism-related offenses who are known to or claim to be, members of terrorist groups was compatible with the Constitution, particularly fundamental rights and the independence of the judiciary.

A minority of six judges dissented from this judgment. For them, the trial of

civilians by military courts violated principles of justice, fair trial and independence of the judiciary as military officers were part of the executive and did not meet the requirements of independent and impartial courts.

The ICJ noted with concern that the procedures adopted by military courts in Pakistan, including the referral of cases to military courts, lack transparency and adequate information about the operation of military courts is not publicly available. This secrecy in itself contravenes the rule of law.

Under the Army Act, a military court is composed of three to five serving officers of the armed forces.  There is no requirement that the military officers belawyers or have any legal training. The officers remain subject to the military chain of command.

A law officer of the Judge Advocate General branch of the military advises the military court but has no decision-making authority. Accused persons convicted by military courts and sentenced to death, imprisonment for life, imprisonment exceeding three months, or dismissal from service have the right to appeal the verdicts and sentences to a military appellate tribunal.

A military appellate tribunal is presided over by “an officer not below the rank of Brigadier”. The Chief of Army Staff, or any other officer appointed by him, also sits in the appellate tribunal. Officers who comprise appellate tribunals are serving military officers who are not required to have any legal training and who continue to be subjected to the military chain of command.

The law provides that every appellate court hearing “may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’sDepartment, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff.”

The military appellate tribunal has the power to “reduce or enhance the punishment” awarded by the military courts of the first instance.

The verdict of a military court that is upheld by a military appellate court is final and cannot be appealed before a civilian court, even the High Court or theSupreme Court of Pakistan. High Courts and the Supreme Court.

According to the Army Act, the rules of evidence in proceedings before courts

Martial are the same as those observed by regular civilian criminal courts. The Army Act does not require that trials in courts-martial or court martial appeals take place in public.

An Ordinance passed on 25 February 2015, further amending the Army Act, allows judges of military courts to hold in camera trials, and keep the identities of individuals associated with the cases secret. The Ordinance was enacted as law in November 2015.

The Pak Army has set up 11 military courts thus far, including three in Khyber-Pakhtunkhwa, three in Punjab, and two in Sindh and one in Balochistan.

International standards require that military courts, like all other courts, must be independent, impartial and competent, and in criminal cases must respect minimum guarantees of fairness.

A duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is an essential component of a fair trial. Even in cases in which the public may be excluded from the trial, the judgment, including the essential findings, evidence and legal reasoning must be made public, except in the interest of juveniles, or proceedings concerning matrimonial disputes or the guardianship of children.

Military courts in Pakistan often do not make detailed reasoned judgments. Military courts in Pakistan are not independent and the proceedings before them are not consistent with the minimum requirements of fairness.

Photo – Courtesy Google

(The writer Mr. VK Gaur is former IG, BSF and has written more than 50 Books on the issues related to Defence, Strategy and Internal security.)

Disclaimer: The opinions expressed within this article are the personal opinions of the author. The facts and opinions appearing in the article do not reflect the views of Indian Observer Post and Indian Observer Post does not assume any responsibility or liability for the same.