May 18, 2023
On May 16, 2023, the National Security Committee (NSC), spearheaded by Prime Minister Shehbaz Sharif, gave its endorsement to the military leadership’s decision to try those involved in the May 9 riots under the Pakistan Army Act (PAA) 1952 and the Official Secrets Act (OSA) 1923.
The Committee, attended by Foreign Minister Bilawal Bhutto-Zardari, Defence Minister Khawaja Asif, Interior Minister Rana Sanaullah, Law Minister Azam Nazir Tarar, Information Minister Marriyum Aurangzeb, Chief of Army Staff (COAS) Gen. Syed Asim Munir, Joint Chiefs of Staff Committee Chairman Gen. Sahir Shamshad Mirza as well as the air force and naval chiefs, also resolved to apprehend all those involved in the riots, including those who had issued directives to rioters, within three days. The meeting reiterated that no leniency will be afforded to those responsible for vandalizing security installations and public property.
Earlier on May 15, a special Corps Commanders Conference (CCC) at the General Headquarters (GHQ) presided over by the COAS resolved to try May 9 rioters, facilitators, and orchestrators under the aforementioned acts, and decided that “restraint will no longer be exercised against perpetrators, spoilers and violators who attack military installations and setups under any circumstances.”
The riots had erupted after Pakistan Tehreek-e-Insaf (PTI) chairman and former Prime Minister Imran Khan was arrested by a heavy contingent of Rangers personnel on orders of the National Accountability Bureau (NAB) under corruption charges. His arrest sparked widespread protests, which quickly became violent. Rioters vandalized and set fire to a number of public properties and especially military properties in particular the Lahore Corps Commander’s house and an office of the Military Engineering Services also in Lahore’s Cantonment area, a showroom and bank located in Askari Tower in Lahore’s Liberty area, and the Radio Pakistan building in Peshawar among numerous others.
They also damaged and vandalized monuments paying tribute to the armed forces of Pakistan, and stormed the otherwise highly secure GHQ premises in Rawalpindi. At least eight people were reportedly killed in the violence while thousands including the PTI’s top leadership have been arrested by the police in ongoing crackdowns.
Strong Condemnation of Military Courts
The military leadership’s decision to try civilians under the PAA and OSA has been strongly condemned by local and international human rights groups, as well as some parliamentarians.
The Human Rights Commission of Pakistan (HRCP) held that while those responsible for arson and damaging public and private property during the recent protests should be held to account, they remain entitled to due process. The HRCP also urged that the cases of all civilians tried under these acts in the past be transferred to civil courts.
Mohsin Dawar, Member of the National Assembly (MNA) and founder of the National Democratic Movement (NDM) in his address to the National Assembly on May 16 expressed grave concerns that the move will set a dangerous precedent that will be indiscriminate in its exercise against political workers.
Trying civilians under the Army Act will be very dangerous. It will set a precedent that will affect political workers. @mjdawar Chairman @NDM_Official speaking at the National Assembly today. pic.twitter.com/vxswKZGlNl
— Khushal Khan (@Khushal_Khattak) May 16, 2023
Deputy Regional Director for Amnesty International (South Asia) Dinushika Dissanayake expressed alarm, stating that trying civilians in military courts is contrary to international law.
“Amnesty International has documented a catalog of human right violations stemming from trying civilians in military courts in Pakistan, including flagrant disregard for due process, lack of transparency, coerced confessions, and executions after grossly unfair trials,” read the statement. “Therefore, any indication that the trial of civilians could be held in military courts is incompatible with Pakistan’s obligations under international human rights law. This is purely an intimidation tactic, designed to crack down on dissent by exercising fear of an institution that has never been held to account for its overreach. The right to a fair trial, guaranteed by Pakistan’s constitution, is severely undermined by this move and cannot be justified. It must be struck down immediately.”
The PAA and the OSA are both tried in military courts. While the jurisdiction of these courts to try civilians lapsed in March 2019, the NSC’s endorsement of the military’s resolve to crack down against May 9 rioters under these laws may entail a constitutional amendment to once again grant such powers to these courts.
Without such a law, the decision to try civilians under the PAA and OSA are illegal.
Bereft of Basic Legal Rights
Under the military court system, civilian defendants cannot hire their own legal counsel and do not have the right to appeal. Verdicts may be issued on confessions alone, while the method by which such confessions are obtained are not known. The media is barred from observing and reporting on proceedings, hence the trial is conducted in absolute secrecy. The courts are presided over by a three-member bench consisting of a Field General Court Martial equivalent to the rank of Colonel, and two Major-rank officers. Judges are required to have passed an exam on military law during their service – a standard law degree is not required. Furthermore, military court judges are not obligated to provide any reasoning for issued verdicts.
Article 14 of the International Covenant on Civil and Political Rights, ratified by Pakistan in 2010, guarantees the right to timely trial by a competent, independent and impartial tribunal. Pakistan’s obligations to uphold and take measures to ensure basic fair trial rights per this Covenant are directly flouted by the existence and empowerment of military courts, according to a 2017 press release by the Human Rights Watch (HRW).
Pakistan is the only country in South Asia to allow military courts to try civilians for non-military offenses, including offenses related to terrorism.
HISTORY OF CIVILIAN TRIALS IN MILITARY COURTS
Military courts were first empowered by the Pakistan Muslim League – Nawaz (PML-N) government to try civilians under terrorism-related offenses through the 21st Constitutional Amendment on January 7, 2015. The courts were established as part of a 20-point National Action Plan in response to the December 16, 2014 attack on the Army Public School in Peshawar.
Following the attack, and prior to the enactment of the NAP, then Prime Minister Nawaz Sharif revoked a six year moratorium on the death penalty in terrorism cases. Six terrorists convicted for the attempted assassination of former military dictator General (retd) Pervez Musharraf were executed by hanging before the end of 2014. Their death warrants were signed by then Chief of Army Staff (COAS) General Raheel Sharif.
Under the 21st Amendment, 274 people were convicted of whom 161 were awarded the death penalty while 113 were given prison sentences. At least 17 death row inmates were executed by hanging, according to figures reported by the International Commission of Jurists (ICJ).
By December 2016, according to press statements issued by the Inter-Services Public Relations (ISPR), 135 out of 144 people convicted in military courts had “confessed” to their crimes, bringing the conviction rate to an astounding 90%.
In his address to the nation on December 24, 2014, Sharif stated that courts would be established across the country for a period of two years to ensure speedy trial of terror suspects. Although the term expired on January 6, 2017, the Pakistani Parliament passed the 23rd constitutional amendment on January 7, 2017, which expanded the tenure of military courts by another two years. Furthermore, under this new amendment, the jurisdiction of military courts was extended to individuals who commit “grave and violent acts against the State.”
Military courts ceased function once again on March 30, 2019. Although the PTI-led government had prepared a draft law granting yet another two-year extension, it lacked the two-thirds majority in the upper and lower houses of Parliament needed to carry out a constitutional amendment.
Then Defence Minister Pervez Khattak also revealed that since the launch of Operation Zarb-e-Azb on June 15, 2014, the Ministry of Interior referred 717 terrorism cases to military courts of which 185 were pending verdict as of the end of term for military courts. Khattak also provided that 478 cases were decided by military courts, leading to a 60% conviction rate. 284 convicts were awarded the death penalty while 192 were sentenced to rigorous imprisonment. 54 cases were dropped on technical grounds whereas only two acquittals were handed out. A total of 56 people were executed after a guilty verdict by military courts during this period.
All cases involving civilian defendants pending with the military courts were subsequently transferred to v (ATC).
On October 18, 2018, a two-member bench of the Peshawar High Court (PHC) comprising then PHC Chief Justice Waqar Ahmed Seth and Justice Lal Jan Khattak, set aside convictions (majority of them death sentences) in 75 military court cases. In its 173-page verdict, the court found that the convictions were based on malice in law and facts and ordered the respondents, including federal and provincial governments, to free all convicts if they were not wanted in any other case.
However, on November 2, 2018, the Supreme Court of Pakistan issued a stay on the verdict, which has remained since.
According to data based on high court petitions against verdicts issued by military courts, compiled by missing persons lawyers Col (retd) Inam-ur-Raheem, 21 civilians who had been declared missing persons after their abduction were produced in military courts and tried under the PAA and OSA.