Following the passage of the 21st Amendment and amendments to the Army Act of 1952, military courts were established for the trial of terrorists/militants. These courts became functional and within weeks convicted and awarded death sentences to six militants. The executions were, however, stayed by the Supreme Court as the matter had become subjudice following a challenge to the 21st Amendment on the basis of the basic structure theory.
Various comments have appeared since then for and against this politically unanimous but legally controversial decision. The proponents of the move justify it on the plea that tribunals, like the ones set up after the passage of the 21st Amendment, are envisaged under international humanitarian law (IHL) i.e., the Geneva Conventions 1949. They also argue that Article 245 of the Constitution, read with the amended Army Act, furnish a new framework of trial under the domestic “law of conflict”, as the country is faced with an extraordinary situation — indeed a state of war. Both the standpoints, however, are flawed, with serious implications for constitutional norms, rule of law and due process.
Invoking IHL vis-a-vis the conflict in Pakistan is a dangerous proposition because the military operation in Fata cannot be categorised as a war or an armed conflict, as the militants/terrorists neither constitute a state nor a ‘non-state entity’. They do not possess the characteristics of an organised and disciplined force, wearing uniforms, carrying insignia or practising the rules of IHL. It is wrong to categorise Operation Zarb-e-Azb as “the case of armed conflict not of an international character in the territory of one of the High Contracting Parties”, as envisaged by Article 3 of the Geneva Conventions. Calling it a war or armed conflict is tantamount to scaling up the operation into a full-fledged international conflict, thereby invoking the application of international law.
Having said so, however, our parliamentarians unwisely used the phrase “insurgency” in the preamble to the 21st Amendment. This was done, perhaps, to lay stress and lend support to the extraordinary measure of replacing anti-terrorism courts with military courts. Insurgency or belligerency, otherwise, is a recognised principle of international law, which carries consequences, in as much as any foreign state may recognise such insurgent groups for strategic or political or economic gains in the area under their control. This would cause considerable embarrassment to Pakistan. In that eventuality, the state shall have to extend the safeguards of Article 3 of the Geneva Conventions to the TTP/ al Qaeda, including the provisions that call for protection and humane treatment of captured/surrendered militants as prisoners of war; they cannot to be tried, sentenced or executed except by a “regularly constituted court, affording all the judicial guarantees which are recognised as indispensable by civilised peoples”. It further entails the protection of civilians and care/treatment of sick/wounded combatants, and letting the International Committee of the Red Cross operate in the conflict zone. This would further exonerate the militants of any legal liability for hitting military installations.
It is also inappropriate to call the operation a war or an armed conflict and thereby internationalising the issue, merely to justify the creation of military courts. The action has been said to be “in aid of civil power” under Article 245 of the Constitution. It entails the ousting of high court jurisdiction under Article 199 of the Constitution in the area where such action is launched. Furthermore, provided that a state of emergency is declared (under Article 232), certain fundamental rights/freedoms can be suspended, thereby giving considerable leeway and wide powers of arrest/detention by the executive. However, the Constitution does not envisage the creation of military courts for the trial of civilians or offenders under the ordinary criminal law. This is so because the country has an organised and functional criminal justice system, which has passed through the vicissitudes of time and is so acknowledged both, locally and internationally.
There also exists a plethora of laws, both substantive and procedural, for the trial of terrorists, militants and other hardened criminals. The country has one of the most stringent legal regimes for terrorists. The execution of 150 convicts prior to Ramazan, mostly convicted of the offences of terrorism and other heinous crimes, is proof of the criminal justice system working and delivering. Had the parliamentarians debated the 21st Amendment, they would have known that anti-terrorism courts were not sitting idle. However, conducting trials and awarding sentences in difficult conditions, when neither the judge nor the prosecutor or the investigators are safe is a tall order. The real problem was the false impression that militants/terrorists are not being punished, a situation created by the governmental decision to place a moratorium on executions of death sentences. The decision was not legal because it was enforced through a notification without amending the law; it was actually motivated by the consideration to earn a few dollars in the form of the European Union extending the benefits of the GSP Plus status to exports from Pakistan.
Ironically, no information was given about the trial and conviction of the six terrorists that were convicted after the passage of the 21st Amendment, like the names of accused persons or those of judges, prosecutors, defence counsel, the place of trial, etc. This is despite the fact that under the Pakistan Army Rules 1954, the Criminal Procedure Code and the Qanun-e-Shahadat Order are applicable to trial by military courts. This form of dispensation of justice will certainly invite international outcry. The best course available is the trial of militants/terrorists by the special anti-terrorism courts under the law and Constitution of Pakistan, ensuring all the legal safeguards of fair trial by an independent and impartial court, following the rule of law and due process. It will also satisfy the requirements of international law, in particular, the Security Council Resolution 1373, obligating member states to take effective counterterrorism measures, including the arrest, trial and punishment of offenders and giving mutual legal assistance to each other to eliminate the scourge of militancy.
Published in The Express Tribune, July 5th, 2015.
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