December 4th, 2021
By Hamid Riaz
Human Rights activist and campaigner Idrees Khattak, who was ‘taken into custody by security officials over 2 years ago, has been convicted of espionage for a foreign intelligence service by a military court, tweets New York Times’ Khyber Pakhtunkhwa correspondent, Ihsanullah Tipu Mehsud.
Mr. Tipu cites senior security officials as confirming the conviction of Idrees Khattak who, according to the information, has been sentenced to 14 years’ imprisonment. Three retired military officials were also court-martialed and sentenced to long imprisonment also on espionage charges.
Even though the news of the conviction is doing the rounds on social media and has been confirmed by senior lawyers and journalists Mr. Khattak’s family is still in the dark about the occurrence. “Just like you we have received the news from several indirect sources but the concerned authorities have not formally conveyed anything to us,” says Talia Khattak, younger daughter of Mr. Idrees Khattak. “Some 4 to 5 weeks ago my lawyer informed us that the Field General Court Martial (the military court trying Mr. Idrees) had reserved a judgment in the matter and will make it public in less than 2 weeks. But to this day we have received no information about the fate of my father from formal channels,” continues Talia.
Khalid Afridi, the counsel representing Mr. Khattak, also has similar things to say about the (unconfirmed) conviction. “The field general court-martial had reserved a judgment in the case on the 26th of October and I was assured by the court that we would be the first to be informed once the judgment is made public but no such thing happened. After the news went viral on social media I scrambled to get some information out but to no avail,” explains Mr. Afridi.
Though he does not yet have access to the detailed reasoning behind the judgment Mr. Afridi believes that a ‘confession’ obtained from Mr. Khattak is the likely cause. “The confession which was presented in court had several obvious signs of tempering in it. Moreover, the confession was obtained after keeping Mr. Khattak in illegal custody for over 5 months. While the law states that any accused should be presented before the court in 24 hours (48 in case of military law). Both these factors render the confession very fallible,” explains Mr. Afridi.
“Moreover, the primary evidence (apart from the confession) which the state has against Mr. Khattak are the 9 devices which were recovered from his possession. Interestingly, not a single one of these devices was presented in court or presented to me for cross-examination,” continues Mr. Afridi.
According to Mr. Afridi’s legal opinion even if the state had irrefutable evidence convicting Mr. Khattak, the very nature of the trial is illegal. “Section 59 of the army act and section 3 of the official secrets act under which Mr. Khattak was tried do not extend to civilian citizens. And only military officials could be tried under these sections. Yet this basic framework of the law was ignored throughout Mr. Khattak’s trial despite our repeated protests,” continues Mr. Khalid.
But despite the (apparent) odds being stacked against him, Mr. Afridi says that he will not give up the fight for Mr. Khattak’s freedom. “There are a number of legal courses of actions we can take after we have been formally informed of the conviction. The most obvious one is to challenge the decision in the Military courts of appeals located inside the GHQ Rawalpindi. If the court of appeals upholds the verdict then according to article 199 of the constitution the judgment can also be challenged in the high and the supreme courts through a writ petition,” explains Mr. Afridi.
But Mr. Afridi believes that taking this obvious legal route is not without its drawbacks. “Even if we challenge the verdict of the military courts in the civilian higher courts we will have to do it through a write petition which means that the entire case will not be re-opened or re-examined. There will be limitations.
This is why in addition to taking the most obvious legal route Mr. Afridi also plans to file a constitutional petition in the Peshawar High Court (PHC) demanding that Pakistani civilians convicted by military courts be given the same right to appeal (which includes a detailed re-examining of the facts of the case) in the higher courts much like the alleged Indian spy Kulbhushan Yadav was in light of recent legislation to that effect. “It is against the constitution to deprive your own citizens of rights which you have awarded to foreign nationals accused of the same crime.” If successful, the constitutional petition will have broad impacts on all people being tried by military courts.
Mr. Khattak was taken into custody on November 13th, 2019 near the Swabi interchange, following which his whereabouts remained unknown for several months before security authorities finally admitted that Mr. Khattak was in their custody and was being tried under the Official Secrets Act. Soon after VoicePk.net interviewed his daughter Talia Khattak who claimed to have met her father in a detention center being run by state authorities.
While speaking to VoicePk.net Colonel (R) of the Military’s Judge Advocate General Branch and Senior Advocate Inam-ur-Rahim strongly criticized the trial and conviction of a civilian under military law Mr. Inam states that “According to Article 10-A of the 18th amendment to the Constitution of Pakistan every citizen has a fundamental right to due process and fair trial which means that Mr. Idrees could not be tried without proper access to an attorney,” says Inam. Inam also believes that even if Mr. Khattak was legally convicted his family should have been informed instantly “According to a supreme court judgment (Said Zaman Vs Federation of Pakistan) even if a person is convicted by a military court his family should be informed of the conviction.”