What standards of justice should military courts in Pakistan adhere to?

Many wonder why those involved in terrorism deserve due process; fair trial is what distinguishes us from terrorists.

Pakistan has been fighting an existential war against terrorists who have killed and maimed our people through vile acts of violence. The failure of the state to bring to justice and prosecute these terrorists through routine legal procedure led to the passing of the 21^st Amendment to the constitution.

The 21^st Amendment paved the way for military courts to try individuals who either claim to be or are known to be part of a terrorist organisation using the name of religion or sect. The 21^st Amendment was upheld by the Supreme Court of Pakistan in a landmark judgment last year. It was an extraordinary step no doubt taken to meet an extraordinary situation, and one which is not necessarily without precedent elsewhere in the world. Indeed there are many nations who have tried their citizens under the laws of war in specific circumstances, chief amongst them, the US in the aftermath of the American Civil War. So there is no legal question about the legitimacy of the military courts.

With the military courts now functioning, there is great responsibility that our military has to shoulder in ensuring that the justice meted out by these courts is actually up to the standards of due process and fair trial guaranteed by the Constitution of Pakistan under Article 10-A. The right of fair trial, therefore, is a basic fundamental right under our constitution which cannot be abridged in any proceeding civil or military.

It is also a key requirement (Article 14) of the International Covenant on Civil and Political Rights (ICCPR) that Pakistan has ratified. Military officers presiding over the courts should be made aware of these constitutional requirements and international obligations. They should accord maximum rights to the accused when trying them, so that the posterity does not condemn us. I have great faith in the abilities of our military institutions to do the job that they have been tasked by the Parliament and which has been endorsed by the Supreme Court.

However, they must be suitably equipped to do so both in terms of their training and an appreciation of the enormity of the task before them. Lives hang in balance. Military officers performing legal functions must be aware of the responsibility that rests on their shoulders in ensuring that the process being undertaken is fair. They must be trained accordingly and must rule without fear strictly according to evidence.

The International Commission of Jurists (ICJ) has already declared that the standards of these courts fall well below both national and international standards of fair trial, though it must be stated, as is frankly admitted by them, that ICJ’s report is based on conjecture and hear say. If true, however, this is a damning indictment of a process we, as a nation, have specifically rolled out to ensure that victims of terrorist outrages get justice. If, however, we err in the process and convict even a single innocent, history will not forgive us. Our valiant struggle against terrorists and their nefarious designs should not be tainted with innocent blood.

What are those standards that need to be adhered to?

The media is full of reports that the accused have often been coerced into confessing. There are reports that the accused in these trials have not been given the choice of counsel. At times charges have been not been disclosed and there have been complaints of insufficient evidence. Questions have been raised about the legal competence of military officers involved in these trials either as prosecutors or even presiding officers. Families of the accused have also complained of harassment which is a serious allegation that must be dealt with. Since there is secrecy surrounding the whole process, there are no means of separating fact from fiction.

What is clear, however, is that the operation of military courts (instituted through a constitutional and democratic process) have been brought into controversy. Eighty-one people are said to have been convicted by these courts, out of which 77 have been sentenced to death. More importantly there have been no acquittals. It points to a will and intent on the part of military courts to go ahead and punish.

The key question is whether they got it right every time? One wants to believe it to be so but it is a very demanding proposition.

Obviously one may also ask why the accused in these cases deserve any fundamental rights in the first place, as the Supreme Court seemed to ask in a recent hearing. One may wonder why those even remotely involved in acts of terror deserve due process. After all, the argument goes, what due process did they give to their victims? What procedure did they follow when blowing up innocents and killing people with impunity?

Appealing as this may be, on a legal and moral plane, this emotional argument is untenable. A presumption of innocence attaches to any accused till the point the prosecuting authority can make a case of that accused’s guilt beyond reasonable doubt. Secondly this is precisely the difference between a civilized state and barbaric terrorists – a civilised state only convicts on the basis of evidence after granting the accused the right to be heard and the right to make out his or her case to the fullest extent. This is due process. Due process separates the civilised from the barbarians. Fair trial is what distinguishes us from the terrorists.

In this respect, the Supreme Court’s upcoming judgment in the case of 12 convicts who have challenged the process on grounds of Article 10-A will be another very important landmark for us. In determining whether the constitutional rights of these convicts have been infringed or not, the Supreme Court would have to balance out the requirements of the extraordinary circumstances in which the military courts operate against the imperatives of a basic standard of fairness that is required to ensure that only the guilty are convicted. It is not an enviable position to be in and yet history will judge us and our war against terrorism on precisely this point.