The 21st Amendment and Military Courts in Pakistan

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Introduction

The practice of using military courts for prosecution of individuals in special cases is not a new concept for Pakistan’s domestic law or international law. The Pakistan Army Act, 1952,¹ (PAA) established the jurisdiction of a court martial in specific cases involving military/defence implications. However, the changes in this practice introduced by the Constitution (Twenty-First Amendment) Act, 2015,² (21^st Amendment), Pakistan Army (Amendment) Act, 2015,³ (PAAA) and thereafter, the Constitution (Twenty-Third Amendment) Act, 2017⁴ (23^rd Amendment) have had a remarkable impact on the practicalities of their use, extent of their jurisdiction and the overarching themes of security law, human rights law and humanitarian law. Due to the rising state of insurrection in the country, on 9^th July, 2014, the Government enacted the Protection of Pakistan Act, 2014⁵ to extend its executive authority of using armed force and the machinery of justice against the perpetrators of insurrection against Pakistan.⁶ These legislative changes allowed civilians suspected of involvement in ‘terrorism-related activities’⁷ to be tried before a court martial. This article aims to develop an analytical understanding of the usage of military courts and its jurisprudential development in Pakistan, especially in light of the recently promulgated constitutional amendments.

International Humanitarian Law and the Practice of Military Courts

From a Perspective of International Humanitarian Law

The rules of IHL, governing the legality of military tribunals and establishments may be effective only if Pakistan is engaged in an armed conflict under Common Article 2 to the Geneva Conventions of 1949⁸ (GCs) as an international armed conflict (IAC), or under Common Article 3 as a non-international armed conflict (NIAC). The situation of insurgency against armed groups in Pakistan, which also concerns the establishment of military courts for civilians, can only be considered a NIAC. The conflict between the forces of Tehreek-e-Taliban Pakistan (TTP) and other associated armed groups may be classified as a NIAC. The criteria for such classification is outside the scope of this paper, for our purposes, it is enough to state that a NIAC existed between these groups and the Pakistani State.

Legality of Use of Military Courts in IHL

It is pertinent to assess if the usage of military courts for civilian trials is lawful under IHL. Besides the rules of customary IHL applicable to the use of military courts for trial of civilians, the foundational source of guarantees of IHL provided to individuals in question may be Common Article 3 of the GCs. It provides, inter alia, that “the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all judicial guarantees which are recognized as indispensable by civilized peoples” shall remain prohibited with respect to the (i) persons taking no direct part in hostilities, including members of armed forces who have laid down their arms, and (ii) those placed hors de combat by sickness, wounds, detention, or any other cause (protected persons under Common Article 3). This outlines the basic framework of guarantees vis-à-vis the practice of military courts, afforded to civilians (including unlawful combatants)⁹ and members of armed forces of a non-state armed group.

In addition, Articles 6(2) of APII and Article 75 of API¹⁰ also provide for protection of judicial guarantees as of right for civilians and protected persons. The guarantees of fair trial listed in Article 6, APII and Article 75, API are customary law, and are thus binding on all states.¹¹ Rule 100 in ICRC’s compilation of rules of customary IHL provides that “No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees.”¹² This is recognised as a norm of IHL in IACs and NIACs. The substance of these legal principles is the protection of the right to a fair trial by an independent and impartial tribunal.¹³ Therefore, in the context of the 21^st Amendment and PAAA, the legality of trials may be dependent on their compliance with the standard of a fair trial – trial by an independent and impartial, regularly constituted court.¹⁴

The right to fair trial is also protected as a fundamental right by the Constitution of Pakistan in Article 10A. The judgment of the Supreme Court of Pakistan in District Bar Association, Rawalpindi and others v Federation of Pakistan,¹⁵ stated that trial of civilians by military courts did have implications for their right to a fair trial.¹⁶ Justice Asif Saeed Khosa indicated that even before considering the implications upon the right to a fair trial under Article 10A of the Constitution, the idea of military courts for trial of civilians may be contrary to the ideal of rule of law, due process and natural justice, preserved in Article 4 of the Constitution.¹⁷ Justice Umar Ata Bandial’s judgment referred to the case of Mehram Ali v Federation of Pakistan,¹⁸ outlining the standards of adjudication that were required for ensuring a fair trial; after which he referred to the situation of armed conflict in Pakistan and stated that the trial of offences in IHL requires a lesser standard of minimum judicial guarantees. In fact, by considering the belligerents involved in armed conflict as unlawful combatants, by implication, Justice Bandial also asserts that their trial is subject to jurisdiction of military tribunals.¹⁹ The applicability of a different standard of protections to unlawful combatants, which is already a controversial issue in IHL, is a problematic practice and some aspects of IHL may have been misread or misinterpreted by the apex court.²⁰

It may be fair to state that establishment of military courts for the trial of civilians is not, per se, illegal in IHL. If the same is prescribed by law,²¹ a military court may be a regularly constituted court for conducting trial, and could be an impartial and independent tribunal constituted for trial of offences committed by belligerent forces and civilians who took part in hostilities. The minimal judicial guarantees explicated in the Additional Protocols and customary IHL suggest that military courts are not inherently unlawful,²² however, their compliance with the standards of fair trial must be stringently assessed with respect to the following criteria:²³

the obligation to inform the accused without delay of the nature and cause of the offence alleged;
the requirement that an accused have the necessary rights and means of defence;
the right not to be convicted of an offence except on the basis of individual penal responsibility;
the principle of nullum crimen, nulla poena sine lege (‘no crime or punishment without a law’) and the prohibition of a heavier penalty than that provided for at the time of the offence;
the right to be presumed innocent;
the right to be tried in one’s own presence;
the right not to be compelled to testify against oneself or to confess guilt;
the right to be advised of one’s judicial and other remedies and of the time limits within which they may be exercised;
the right to present and examine witnesses;
the right to have the judgment pronounced publicly (proceedings may be conducted in camera if security implications necessitate so);²⁴ and,
the right not to be prosecuted or punished more than once by the same Party for the same act or on the same charge (non bis in idem).

The procedural aspect of establishment of military courts under 21st Amendment and PAAA is primarily governed by the PAA. The Pakistan Army Rules, 1954 also provide the legal procedure (due process) to be followed when a person is charged of an offence subject to jurisdiction of a court martial.²⁵ Rules 23 and 24 of Pakistan Army Act Rules, 1954 for example require that information regarding the charges against an accused must be supplied to the accused at least 24 hours before the trial, while also appraising them of evidence against them and their rights in connection with the preparation of their defence and securing witnesses (if any) on their behalf. The right of challenging the composition of the court martial is also secured under Section 104 of PAA. In addition, the ideal of presumption of innocence is also preserved by the establishment of military courts – (i) the law of evidence for military courts is similar to that of ordinary criminal courts;²⁶ (ii) all decisions of a court martial are required to be supported by an absolute majority of votes (in some cases the decision must be unanimous), otherwise the accused is acquitted;²⁷ and, Rule 42(4) of Pakistan Army Act Rules, 1954, specifies that in cases where the accused may be punished with death penalty if found guilty, a guilty plea is treated as a plea of ‘not guilty’.²⁸ These safeguards show that the presumption of innocence and other fundamental judicial guarantees are sufficiently protected as principles of law by military courts. Considering these procedural guarantees, the Supreme Court indicated in Brig (Retd) F.B. Ali and another v The State,²⁹ that military courts’ establishment protected the right to fair trial.³⁰

However, this is not to suggest that the practices of military courts are always a lawful exercise of jurisdictional competence. The notable judgment of Chief Justice Waqar Ahmad Seth in Abdur Rashid v Federation of Pakistan³¹ shows that when the proceedings of military trials of 70 civilians were evidently conducted without evidence (evidence was often based on possibly forced/false confessions)³² and protection of fair trial guarantees, all of the convictions were set aside and the interns were set free. In a similar exercise of judicial review of such cases, Chief Justice Seth set aside convictions by military courts in around 200 cases.³³ This reflects that fundamental guarantees provided by the Constitution, and military law are sufficiently safeguarded by superior courts in cases where there is an irregularity.³⁴

The only judicial weakness of the system of adjudication of military courts is that it violates the ideal of separation of powers and judicial independence.³⁵ However, since military courts are not inherently illegal in IHL, and they are legally sanctioned by legislative and constitutional measures, their establishment as such may not be unlawful for purposes of IHL.

International Human Rights Law and Constitutional Guarantees

While IHL may allow for trial of members of belligerent armed groups by military courts in some cases, the foundation of fair trial in IHRL presents a significantly different view in this respect. To analyse the extent and limits of these protections, the human rights and freedoms enshrined in the International Covenant on Civil and Political Rights, 1976 (ICCPR) must be assessed in light of international rules and practice. Pakistan ratified the Convention in 2010, therefore, analysis of the legality of 21^st Amendment and PAAA will be considered in light of the protections afforded by ICCPR and the Constitution.

Right to Fair Trial in Military Courts

The primary concerns of IHRL on the practice of trial by military courts are addressed through the wide scope of protections afforded by Article 14 of ICCPR. The protection of Article 14 is akin to Article 10A of the Constitution, which preserves the right to fair trial and due process – the jurisprudence of the former details upon the content and substance of the right. While the substantive content of the right to fair trial in IHRL (through ICCPR) and the Constitution is similar to the provisions in IHL, the legality of military courts is more restricted in IHRL.

On the criteria of independence and impartiality, the judgment of the European Court of Human Rights (ECtHR) in Findlay v The United Kingdom³⁶ emphasised that values of independence and impartiality in fair trial were connected to the rules/procedure of appointment of members, security of tenure and freedom from interference of the executive. This is not to say that trial by military courts is inherently contrary to the right to fair trial. In the General Comment No. 32, the UN Human Rights Committee asserts that, “While the Covenant does not prohibit the trial of civilians in military or special courts, it requires that such trials are in full conformity with the requirements of article 14 and that its guarantees cannot be limited or modified because of the military or special character of the court concerned.”³⁷ This suggests that if military courts fully comply with the standards of IHRL, their constitution may be lawful.

Therefore, the fact that section 104 of PAA allows challenge to the composition of a court-martial by the defendant, shows that it allows greater possibility of independence and impartiality. However, since the armed forces are part of the executive branch of the Federation, it may suggest that military courts are unfit for conducting adjudicative functions a priori. Notwithstanding, the Supreme Court of Pakistan has considered the question of independence in great depth and has held that military courts comply with the substantial requirements of fair trial.³⁸

Another problematic avenue for the military courts’ establishment under 21^st Amendment may be that they do not hold public hearings, which is at least superficially contrary to Article 14. However, Article 14(1) states that, “The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice…” Since, the major objective of PAAA and 21^st Amendment is to try persons who are involved in insurrection against Pakistan, the trial of such persons may have substantial national security implications.

The right of review of decisions by a court-martial may have been another major concern of IHRL (Article 14(5), ICCPR). This is also a constitutional requirement under the purview of Article 10A. Thus, it presents another challenge to the legality of the 21st Amendment and PAAA. However, in practice, this issue seems to have been addressed by the judiciary. The Supreme Court’s constitutional jurisdiction has provided resolution to the possible lacunae in the mechanism established by 21^st Amendment and PAAA. Although, generally, under Article 199(3) of the Constitution, a review of conviction by military courts under PAA is barred by law, however, subject to the ruling in Brig (Retd) F.B. Ali and another v The State,³⁹ Shahida Zahir Abbasi v President of Pakistan,⁴⁰ and Mushtaq Ahmed v Secy. Ministry of Defence,⁴¹ the same may be challenged on the grounds that (i) proceedings under PAA were corum-non-judice; (ii) without jurisdiction; or, (iii) mala fide.

Therefore, the element of review by superior courts is also protected in the context of legality of 21^st Amendment and PAAA. It is noteworthy that the legality of military courts for trial of civilians may seem to be contrary to IHRL and constitutional guarantees, and it may be so in some borderline cases; nonetheless, most or all aspects of the right to fair trial have been sufficiently protected under the existing legal regime of military courts.

Non-Discrimination and Equality

Article 26 of ICCPR prescribes equality before the law, so that no person is treated with discrimination by reference to any characteristic. Freedom from discrimination is a foundational principle of human rights law,⁴² and essential for rule of law (contrary to arbitrary application of law) in society. However, the 21^st Amendment and PAAA seem to have created an arbitrary regime of law for selective military trial of civilians who belong to the group described in section 2(1)(d)(iii) and (iv) of PAAA – claiming or are known to belong to any terrorist group or organization using the name of religion or a sect.” In the judgment of Justice Qazi Faez Isa in District Bar Association, Rawalpindi and others v Federation of Pakistan,⁴³ the principle of reasonable classification was used to assess the discriminatory content of PAAA. Since, the decision of whether a person involved in terrorist activities would be subject to the jurisdiction of special courts under Anti-Terrorism Act, 1997,⁴⁴ is made arbitrarily by the Ministry of Interior,⁴⁵ it is possible for this practice to be discriminatory against persons who are tried by military courts.

IHRL requires that discrimination must be conducted in reference to an individual’s protected characteristic, however, reading Article 26, ICCPR, it seems that almost any kind of personal status/characteristic(s) may be sufficient to establish a breach of Article 26 – because, difference of treatment with respect to certain protected characteristics (like, race, sex, religion, national or social origin, etc.) “or other status” may be violative of ICCPR. This suggests that the 21^st Amendment’s military courts’ establishment may be compliant with IHL, and the right to fair trial, but its discriminatory jurisdictional exercise is likely to be contrary to IHRL and constitutional law of the state.

Conclusion

The 21^st Amendment and PAAA are landmark statutory provisions in the constitutional history of Pakistan. Their scheme of military courts for civilian trials meets most of the substantive content of IHL and IHRL. It was found that minimal guarantees (required by IHL) are maintained by military courts established under PAA and PAAA. There were concerns of humanitarian law that could have been addressed better (e.g. the categorisation of civilians as unlawful combatants), and possibilities of breach of IHL in some cases (e.g., if an unfair or unlawful sentence is passed by military courts),⁴⁶ however, the overall question of legality of establishment of military courts was not successfully challengeable under IHL. Similarly, IHRL placed a number of restrictions and conditions to be satisfied. However, on careful consideration, it was found that much of the content of right to fair trial was guaranteed by the practice of military courts under PAA. It was the discriminatory subjection of certain members of non-state groups to trial of military courts that was likely to be unlawful in IHRL. Therefore, pursuant to considerations of necessary safeguards against restrictions upon human rights, save if a margin of appreciation or some limitation is allowed, the 21^st Amendment and, especially PAAA, violated Article 26 of ICCPR and the right of all citizens to be treated equally, without discrimination.

Amna Riaz Ali

Amna is a partner at LegalEase International Lawyers and Consultants and also serves as a consultant for the ICRC. She also formerly served as a law clerk at the Supreme Court of Pakistan.