The International Commission of Jurists has issued a strong condemnation of Pakistan's latest military courts legislation. The statement provides useful background on previous uses of military courts in that country and the judicial reaction. It also highlights defects in the new system.
The UN Human Rights Committee and the Special Rapporteur on the independence of judges and lawyers have emphasized that civilians should not be subject to the jurisdiction of military tribunals, particularly where, like in Pakistan, military tribunals lack the required institutional independence from the executive. They have also reaffirmed that internationally recognized guarantees of a fair trial also apply to military tribunals.
Proceedings in military courts Pakistan, which will now have jurisdiction over terrorism cases after today’s amendments, violate international standards on the right to a fair trial, including the UN Draft Principles Governing the Administration of Justice Through Military Tribunals (Decaux principles):
Judges of military courts are military officers who are a part of the executive branch, are not legally trained, and do not enjoy the institutional independence necessary to ensure that the tribunals are independent and impartial;
The amendments to the law allow civilians accused of a wide range of terrorism related offences to be tried by courts martial, in contravention of international standards providing that jurisdiction of military courts should be limited exclusively to trying members of the military for breaches of military discipline; and others which provide that at most, jurisdiction may be extended to civilians only in exceptional cases, where civilian courts are unable to undertake such trials or they are permitted by international humanitarian law;
Appeals against courts martial orders to civilian courts are barred and the Supreme Court may only assume jurisdiction exercising its discretionary review powers, which is incompatible with standards that require appeals from military tribunals to be brought before civilian courts;
Courts martial proceedings and subsequent punishment may be carried out “in any place whatsoever”, effectively reducing public scrutiny of the proceedings including by family members of the accused and victims, as well as the media and civil society, which is contrary to fair trial standards requiring public trials in all but certain exceptional and prescribed circumstances.
Pakistan last authorized military tribunals to try civilians in 2007, when General [Pervez] Musharraf, after declaring a State of Emergency, amended the Army Act to empower the security forces to try civilians accused of committing crimes against the defense or security of Pakistan in military courts. The Supreme Court declared the amendment to be without legal effect in 2009, after ruling that General Musharraf’s proclamation of emergency and all subsequent actions were unlawful.
Before that, the Pakistan Muslim League promulgated the Armed Forces (Aid to Civil Power) Ordinance in 1998 to allow for trials of civilians by courts martial for various offences, including crimes under the Pakistan Penal Code. In 1999, the Pakistani Supreme Court in Liaquat Hussain and others vs. the Federation of Pakistan, declared the Ordinance unconstitutional and held that the trial of civilians in military courts amounts to creating “a parallel system…which is wholly contrary to the known existing judicial system”. The Supreme Court also held that this departure could not be justified on the basis of the public emergency or the “doctrine of necessity”.
Military courts were also established by military dictatorships, including under General Zia-ul-Haq, which were used to target political opposition and stifle dissent.The New York Times has this outstanding article by Declan Walsh on the context and implications of the new legislation, with this telling lede:
After Taliban gunmen massacred dozens of schoolchildren in Peshawar last month, Pakistan’s two most powerful men convened an emergency meeting at army headquarters. Their body language, captured in a government-released photo, was revealing: Prime Minister Nawaz Sharif looked glum and ill at ease, while the man beside him, Gen. Raheel Sharif, the army chief, lectured confidently.The article later observes:
Few doubt the need to reform Pakistan’s sclerotic criminal justice system, which has almost entirely failed to bring militant leaders to justice. The new military courts offer a short, sharp solution: cases decided within one week, using lower standards of evidence than in civilian courts. Mr. Sharif has said that convicted militants could be hanged in 15 days or less.