Daily Times

In the backdrop of sentences announced by the military courts to the PTI workers involved in 9th May attacks on military installations and monuments of the martyrs and GHQ some circles within the country have unleashed a tirade against these verdicts declaring them unconstitutional and in violation of the fundamental rights as enshrined in the constitution. There also has been a sharp reaction by US, UK and EU as well.

The state department in a statement said “US is deeply concerned that Pakistani civilians have been sentenced by a military tribunal for their involvement in protests on May 9, 2023. These military courts lack judicial independence, transparency, and due process guarantees. The US continues to call on Pakistani authorities to respect the right to a fair trial and due process, as enshrined in Pakistan’s Constitution.” The UK’s foreign office echoing the same sentiment in a statement reiterated “While the UK respects Pakistan’s sovereignty over its own legal proceedings, trying civilians in military courts lacks transparency, independent scrutiny and undermines the right to a fair trial. We call on the Government of Pakistan to uphold its obligations under the International Covenant on Civil and Political Rights (ICCPR)”.

The EU said “It notes with concern the sentencing of twenty-vive civilians by a military court on 21 December. The Verdicts are seen as inconsistent with the obligations that Pakistan has undertaken under the ICCPR. In line with article 14 of ICCPR every person is entitled to a fair and public trial in a court that is independent, impartial and competent and has the right to adequate and effective legal representation. It also stipulates that any judgment rendered in a criminal case shall be made public”

Basically the US, UK and EU have disapproved civilians’ trials in the military courts which in their view lacks transparency and fairness and also negates Pakistan’s commitment under the International Covenant on Civil and Political Rights. As far as trials of civilians in the military courts are concerned it is pertinent to mention that in the British military justice system, military courts have broad-ranging jurisdiction not only over members of the armed forces but over civilians accompanying the armed forces overseas. The US also has similar arrangement where military courts can try civilians accompanying the US forces deployed abroad.

Even the counties now in EU have been trying civilians in military courts at different times. These countries include Germany (where the Basic Law for the Federal Republic allows for the institution of military courts), Austria, Norway, Sweden, Denmark, Slovenia, Estonia, Netherland, Belgium, France, Spain and Turkey. However most of these countries have opted for the abolition of military jurisdiction in peacetime. The military courts tried civilians under extra-ordinary circumstances and for security reasons which provided the rationale for their establishment.

The concern shown by US, UK and EU on convictions by military courts in Pakistan reflects their hypocrisy. The sentences given to the civilians by the military court in Pakistan have not been awarded for their involvement in normal crimes but attacks on the military installations and GHQ. Anybody involved in such activities comes under the purview of the Pakistan Army Act which has been enacted by the parliament of the country.

The other point needing to be remembered is that these sentences have been announced with the tacit approval of the Supreme Court of Pakistan. It may be mentioned that military courts were also established in the wake of APS tragedy through a constitutional amendment approved by the Supreme Court and it enjoyed consensus among all political forces and stakeholder in the security of the country.

The Press release by ISPR in regards to these convictions clearly mentioned that all convicts retained the right to appeal and other legal recourses as guaranteed by the law and the constitution. It clearly means that it was not the end of the road for the convicted persons as they still have legal avenues to appeal against their convictions.

Now coming to the contention by US that these trials lacked fairness and transparency, I am amazed how a country guilty of establishing Guantanamo Bay detention centre can talk in such terms? Opened in 2002, Guantanamo continues to uphold a legacy of torture, indefinite detention, Islamophobia and injustice.

Detainees in Guantanamo were held without charges or fair trials, violating the US Constitution and depriving them of their basic human rights. These detainees were subjected to torture or other ill-treatment and have been detained, in some cases, for over 20 years. A recent visit to the facility by the UN Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism confirmed that Guantanamo Bay’s legacy of torture and degradation is still ongoing.

Former US President Barack Obama issued an executive order to close the facility in 2009. Despite this, 30 men remain detained at Guantanamo today. Most of these men were never charged with a crime, and many of them were tortured. Over half of them were cleared for release or transfer years ago and are still awaiting next steps – which never seem to come.

Military courts trying civilians is not an out of the world phenomenon. As far as Pakistan is concerned civilians have been tried in military courts in the past as well. The first military court was established in 1953 to quell riots against Ahmediya community which awarded death sentences to many leaders which were later on commuted to life imprisonment. Many people were convicted by military courts established by Field Marshall Ayub Khan. Yahya Khan also tried people in military courts. Zulfiqar Ali Bhutto created military courts in the backdrop of 1977 elections to restore law and order after the commencement of agitation against alleged rigging. General Zia ul Haq also tried people in the military courts. In 1991, special courts were established in Pakistan to try civilians for terrorism-related offenses under the Twelfth Constitutional Amendment. These courts had the power to oust the jurisdiction of civilian courts. The PTI leaders who are critical of the trial of their workers involved in 9th May incidents must not forget the fact that 180 people were tried and convicted by military courts during Imran Khan’s rule as well for justifiable reasons. The cases related to 9th May had even more compelling reasons for military trial of the person involved in 9th May incidents. The party is better advised to focus on providing legal assistance to those who have been convicted rather than challenging the rationale for establishment of military courts and unleashing propaganda against the military establishment with an ostensible aim to tarnish the image of the country.

The writer is a former diplomat and freelance columnist.