Human rights and national security

With the constant changing nature of combat and terrorism and with lines blurring in between civilian and military engagement, one case of a country trying its own civilians in military courts is that of Pakistan.

On the 31st of May, Human Rights Watch issued an unequivocal call to Pakistan’s government: civilian suspects scheduled for trial under the military justice system should be expeditiously transferred to the civilian justice domain. This stark appeal casts a spotlight on a contentious issue that not only breaches Pakistan’s commitments under international human rights law, but also raises grave concerns about the fundamental rights to due process and fair trial for accused civilians. The issue has gained prominence in the wake of a recent handover, in which 33 civilian suspects were entrusted to the Army for military court trials. The suspects are charged with attacking sensitive defense installations, and the illicit confiscation or destruction of critical government resources such as equipment, computers, and data collectors. They find themselves ensnared in a complex legal web. The Pakistan Army Act (PAA), 1952, and Official Secrets Act, 1923 allow trying civilians in military courts only in narrowly defined circumstances, including for inciting mutiny, spying, and taking photographs of “prohibited” places. The unfolding situation hence presents a potent mixture of legal and ethical dilemmas, underlining the interplay between national security concerns and human rights safeguards.

The United Nations High Commissioner for Human Rights has expressed his concerns, insinuating that the arrests may amount to arbitrary detentions under international law, and that post-arrest treatment may include acts of custodial torture, forbidden under the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

According to Amnesty International, unfortunately, Pakistan is the only country in South Asia to allow military courts to try civilians for non-military offenses, including offenses related to terrorism.

However, during an address to officers in Lahore Garrison on May 20, 2023, Pakistan Army Chief General Asim Munir announced that the “legal process of trial against planners, instigators, abettors and perpetrators involved in May 9 tragedy has commenced under Pakistan Army Act and Official Secret Act.” This decision was initially made by the Army’s top brass on May 15, following extensive protests triggered by the arrest of former Prime Minister Imran Khan on corruption charges. It was subsequently endorsed by the federal cabinet and the National Security Committee.

On May 9, violence swept across Pakistan after former Prime Minister Imran Khan was arrested on corruption charges. Many of Khan’s supporters attacked police officers and set fire to ambulances, police vehicles, and schools. Among the places attacked were the military headquarters and other offices in Rawalpindi and the houses of senior military officials. Following the clashes, police arrested thousands of members of Khan’s political party, Pakistan Tehreek-e-Insaf (PTI), on charges of criminal intimidation, rioting, and assault on government officials.

In the case of Pakistan, this is not an isolated incident. In the previous decades, the governments have sanctioned military courts with the authority to trial civilians. The 21st Amendment to the Constitution inserts the Pakistan Army Act, 1952; the Pakistan Air force Act, 1953; the Pakistan Navy Ordinance, 1961; and the Protection of Pakistan Act, 2014 into the first schedule of the Constitution. Laws in the first schedule are exempted from the operation of Article 8 (1) and (2) of the Constitution, which stipulate that the State shall not pass any law that violates fundamental rights, and that any law that violates the fundamental rights provisions of the Constitution shall be null and void. The 21st Amendment also provides that for offenses related to terrorism committed by those who claim to, or are known to, belong to a terrorist organization “using the name of religion or a sect”, Article 175 (3) of the Constitution, which preserves the principle of the separation of the judiciary from the executive, will not be applicable. The amendment to the Pakistan Army Act, 1952 adds to the list of persons who can be tried by courts martial those who commit offenses related to terrorism who belong to “any terrorist group or organization using the name of religion or a sect.”

In 1966, under the rule of military dictator, Muhammad Ayub Khan, an amendment was made to the act whereby civilians accused of inciting mutiny within the rank and file through written and verbal material, could be tried under the act. The court that hears cases brought under the act is called the Field General Court Martial. This military court functions under the supervision of the military’s legal directorate, also called the Judge Advocate General (JAG) branch. The president of this court is a serving military officer, and the prosecution counsel is also a military officer.

The 2015 amendment to the Army Act significantly broadened its domain, incorporating into its jurisdiction individuals alleged to be affiliated with any terrorist entity or organization that invoked religion or a specific sect. Notably, these individuals were characterized by their involvement in attacks directed at civilians or military structures, institutions, or personnel. It is crucial to observe that this statute did not extend to any political party duly registered under the Political Parties Act of 2002. This amendment, however, lost its effect following the termination of the mandate for military courts, established specifically for the prosecution of terrorism-related offenses. As a result, the purview of military law concerning civilian trials is technically narrow. The addition of charges under the Official Secrets Act against the alleged rioters is mainly an effort by the Army to establish jurisdiction, even though it would necessitate considerable ingenuity on the part of the prosecutors to justify how these acts of destruction of public property fall within the purview of this anti-espionage law.

Intriguingly, during Prime Minister Imran Khan’s tenure from August 2018 to April 2022, more than 20 civilians faced trials under military law. Among the prosecuted was Idris Khattak, a human rights activist who was convicted of the charge of espionage in 2021 and sentenced to 14 years. The conviction rested on accusations of his divulgence of sensitive information to a “foreign intelligence agency.” However, not all cases under this legislative framework yielded similar outcomes. In a noteworthy instance in 2020, the Peshawar High Court overturned nearly 200 convictions, ordering their release of these individuals unless implicated in any other criminal activity. These individuals were members of proscribed groups, stood accused of attacking civilians and military personnel. The sentences originally meted out to these convicts ranged from capital punishment to diverse durations of imprisonment, underscoring the varied and often severe punitive measures associated with these charges.

According to data compiled by the military’s media office and substantiated by the International Commission of Jurists, military courts have rendered convictions for a staggering 346 individuals since January 2015. Out of this total, a distressing 196 individuals received the dreadful death sentences, while 150 others were handed various prison terms. Tragically, at least 56 individuals met their fate through execution, while only a solitary individual was fortunate enough to secure an acquittal.

Unfortunately, the International Commission of Jurists has diligently documented egregious violations of fair trial standards within the operations of military courts. These transgressions include the denial of the right to select legal counsel, the absence of public hearings, the failure to disclose charges to the accused, the withholding of judgment copies containing evidence and reasons for the verdict, and an alarmingly high number of convictions based on “confessions” deprived of adequate safeguards against torture and ill treatment. These findings underscore the grave concerns surrounding the lack of procedural fairness and the susceptibility of individuals to miscarriages of justice within the military court system.

The act of subjecting civilians to military tribunals in Pakistan stands in stark contravention to fundamental principles of justice, not merely being opaque and asymmetrical and inappropriate but utterly illicit and unethical. It is an affront to the rule of law, and a clear derogation from the pursuit of justice. The essence of justice seems to be a secondary concern, if at all, to the operations of Pakistani military courts. The initiation of civilian trials under the Army Act, sanctioned by both the National Security Committee and the federal cabinet, is not merely a breach of the constitutional framework, but also a flagrant defiance of its international commitments.

As per Article 10-A of the Pakistan Constitution, which enshrines the right to a fair trial and due process as pivotal in adjudicating civil rights, obligations or any criminal accusation leveled against them. It is a constitutional mandate that these military courts seem to have overstepped, thereby challenging the very rule of law in its most fundamental form.

Moreover, Pakistan is a signatory to the Universal Declaration of Human Rights and various other international human rights treaties as well, such as the International Covenant on Civil and Political Rights. It has unequivocally pledged to uphold universal human rights norms. Article 14 of the said Covenant delineates the universal principle that all individuals must stand equal in the eyes of the law and the judicial process, thereby securing their right to a just and public hearing conducted by a competent, independent, and unbiased tribunal established by law. Thus, this approach of military courts trying civilians not only subverts the Constitutional framework and its international obligations but also undermines the very principles of fairness, transparency, and justice that form the bedrock of any democratic society.

Pakistan, whether under civilian or military regime, has always been a repressive and regressive state. The harshest of measures are imposed on citizens, whether they are Baloch, journalist, writer, actor, etc. There is no place for free-thinking in the country. Moreover, the establishment has always used or abused public sentiments for its own benefit. In case of May 9 riots also, the establishment was unable to control the situation, and in a way, the Army is once again given leverage to deal with domestic law and order crisis.

It is distressing reality that civilian trials in Pakistan’s military courts are a stark violation of constitutional and international human rights norms. From Pakistan’s Army Act to the Official Secrets Act, historical and contemporary laws have been exploited to legitimize these trials, often misused against civilians and plagued with unfair practices. Alarmingly, violations include denial of legal counsel, lack of public hearings, and a disturbing number of convictions based on coerced confessions. Ultimately, this study underscores the urgent need for Pakistan to reform its judicial practices to align with constitutional and international human rights commitments, lest it further tarnish its national integrity and reputation.