Rights concerns: Military courts must not try children, says HRCP

HRCP, ICJ send letters to prime minister and interior minister over issue.

LAHORE:

The Human Rights Commission of Pakistan (HRCP) and the International Commission of Jurists (ICJ) on Thursday expressed concern on the possibility of juveniles’ trial in the newly-constituted military courts after the passage of the 21st Amendment.

In letters sent to the prime minister and the interior minister on Thursday, the HRCP and the Geneva-based ICJ said: “The constitutional amendment and the corresponding amendments to the Army Act, 1952, give military courts jurisdiction to try all persons, including civilians, alleged to have committed certain offences related to terrorism. The amendments provide that the government may transfer a case related to the enumerated offences under the Army Act from any court (which prima facie includes juvenile courts) to a military tribunal for trial. The amended law also stipulates that in case of inconsistency with other laws, provisions of the Army Act would prevail. The amendments do not expressly exclude juveniles from their ambit.”

The HRCP and the ICJ said that these provisions had created the possibility that the requirement under the Juvenile Justice System Ordinance (JJSO), 2002, whereby juvenile courts shall have exclusive jurisdiction to try individuals below 18 years of age, could be overridden in certain terrorism-related cases.

“In the circumstances, it is important that the government clarifies and ensures that in implementing the law, individuals who were under the age of 18 at the time of the alleged crime may not be tried in military courts. A trial before such a court would violate Pakistan’s obligations under international law,” they said.

The HRCP and the ICJ said that juveniles were entitled to all internationally recognised fair-trial guarantees that applied to adults, as well as special care and additional protection under international standards, including the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010 and Convention on the Rights of the Child, which Pakistan ratified in 1990, as well as the UN Standard Minimum Rules for the Administration of Juvenile Justice (Beijing Rules).

“Far from ensuring special care and additional protection for juveniles, proceedings before the military courts fell short of national and international standards requiring fair trials: judges are part of the executive branch of the state and continue to be subjected to military command; judges are not legally trained or specially trained on protecting the rights of the child and the principles related to juvenile justice; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied. In addition, the procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and alleged offences are kept secret,” they said.

“It should also be noted that the Committee on the Rights of the Child has taken the position that only civilian courts are able to take into account the requirements of the proper administration of justice in the case of juveniles,” the letter said.

“The HRCP and the ICJ urge you to clarify the government’s policy on referral of juveniles to military courts for trial, ensure that in its implementation of the amended law, no case of an individual who is under the age of 18 at the time of the alleged crime is referred or transferred to military courts for trial,” they said.

“Doing so will help ensure that Pakistan complies with its obligations under Pakistani law and international standards to ensure and that juveniles suspected of infringing the penal law are only tried by special juvenile courts in proceedings that meet international standards for the fair administration of juvenile justice,” the HRCP and the ICJ concluded in the letters.

Published in The Express Tribune, May 22^nd, 2015.