LAST month, the parliament voted to pass the 23rd Amendment to the Constitution and the Army (Amendment) Act, 2017, renewing for another two years the authority of military courts to try civilians accused of certain terrorism-related offences. The initial resistance from opposition parties was short-lived and the amendments were eventually passed with overwhelming majorities in both houses.
The renewal of Pakistan’s system of ‘military justice’ is in some ways even more alarming than when it was initially introduced in 2015. This time around, parliamentarians had ample evidence available to them that clearly demonstrated how military courts in actual practice flouted even basic fair trial guarantees. Yet, not only did this fail to convince them to reject the bills, they also let the legislation pass without any effective safeguards.
The bills passed by the parliament include three amendments introduced by the PPP, which were touted as measures to help ensure that military trials would meet due process requirements. The Army Act (as amended) now provides that the Qanoon-e-Shahadat Order, 1984 (the Evidence Act) will be applicable to military trials; that the accused will have the right to counsel of their choice; and the suspects detained under the new law will be informed of the charges against them within 24 hours of arrest.
That these provisions are purported ‘safeguards’ shows how uninformed most members of parliament are about how military trials of civilians actually work in practice.
For example, the laws under which civilians are tried by military courts (ie the Army Act, 1952 and the Army Act Rules, 1954) already recognised the fundamental rights of defence, including the right to engage counsel of choice. They also provided that rules of evidence in military courts’ proceedings “shall be the same as those which are followed in criminal courts.”
However, these safeguards are routinely violated in practice during military courts’ proceedings. These violations are made possible by the opacity and secrecy with which military courts operate and the complete lack of oversight or possibility of appeal to civilian courts.
For example, in every case where families of convicts filed review petitions before high courts and the Supreme Court, the military claimed the convicted persons had “willingly” chosen to forego the right to engage a civilian lawyer or to present a defence. Also, in 95 per cent of cases, the convicts reportedly “confessed” to their crimes. In ordinary murder cases tried by regular courts, convictions on the basis of judicial confessions are even less than 5pc.
What makes suspects behave so differently before military courts that they choose not to present any defence and instead ‘confess’ to the charges, even though they may face the death penalty as a consequence? Even supporters of military courts would agree that in the absence of adequate safeguards, this raises serious concerns about the use of torture and other ill treatment.
The provision that makes it mandatory for suspects arrested pursuant to the Army Act to be informed of the charges against them within 24 hours of arrest, while necessary, will not be relevant to many cases of civilians that typically come before the military courts.
A large number of people convicted by military courts are not terrorism suspects who were arrested by the police and then handed over to the military for trial. They are people who were subjected to enforced disappearance and kept in secret detention in internment centres in Fata and other undisclosed locations for many years — at times for even up to eight years — before their trials. They continue to be left without any redress as even the high courts and Supreme Court have refused to entertain allegations of enforced disappearance or secret detention in their review jurisdiction. Military courts have effectively been used to ‘legitimise’ past cases of enforced disappearance — something this safeguard does not acknowledge, let alone address.
The amendments also make no provision for remedy or redress in cases where military authorities do not respect these safeguards. On the contrary, they give all persons associated with military courts complete immunity from legal proceedings for all actions taken pursuant to the law.
The extension of the ‘temporary’ and ‘exceptional’ use of military courts to try civilian terrorism suspects for another two years also raises more fundamental questions.
First, how long is ‘temporary’? We have seen in other countries how some counterterrorism laws, initially introduced as ‘short-term’ and ‘temporary’ measures, have remained in force for several decades.
For example, the oppressive Sri Lankan Prevention of Terrorism Act, enacted as a temporary law in 1979, still exists. India’s draconian Armed Forces Special Powers Act was also introduced as a ‘temporary’ measure, but has been in force in Manipur for 36 years and in Kashmir for 26 years.
Second, what is an ‘exceptional situation’ and on what yardstick are we to assess whether such a situation has normalised? The preambles and statements of objectives of the amendments appear contradictory: on one hand, they claim convictions by military courts have helped reduce terrorism; on the other, they say Pakistan is still going through a grave, existential crisis because of the threat of terrorism. Does the intangible, immeasurable idea of ‘exceptional circumstances’ give the government a carte blanche to enact ‘emergency’ measures for an indefinite period without any regard for human rights? What is the guarantee that in 2019, when the 23rd amendment lapses, it will not be reintroduced on the ground that the ‘exceptional’ situation still persists? It has been more than 15 years since the September 11 attacks in the United States — the US has still retained many of the ‘exceptional’ measures and new powers it adopted to respond to those attacks.
Members of parliament claim they voted against their conscience to allow the 23rd Amendment to pass because military courts, though undemocratic and contrary to the rule of law, are required in these ‘exceptional’ times. Their admission will not help the many people whose lives and liberty are now in danger because of their vote, nor would it help the criminal justice system, which is now at risk of once again being neglected and being permanently displaced by these so-called temporary, exceptional measures.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, April 4th, 2017