Pakistan’s human rights obligations require it to treat arrested persons with dignity
In the aftermath of the violence committed at various national institutions on May 9, the Pakistani state’s decision to try the alleged “miscreants” in military courts is facing intense backlash from international human rights organizations and NGOs alike. More than 7,000 civilians allegedly involved in the attacks, now deemed ‘terrorists’ under anti-terrorism laws (with sixteen people moved to military courts) have been collected and detained by the state. Post-arrest incidents of torture and harassment are consistently being reported. While some of those arrested are being detained and have yet to be presented in court, others are missing entirely; chief among them is journalist Imran Riaz Khan, who was last seen on May 9. Despite orders from the Lahore High Court, the Inspector General of Punjab has failed to produce him, categorically stating that state authorities do not have him in custody.
Pakistan is treaty party to seven core human rights treaties including the two most important human rights instruments, the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic Social and Cultural Rights. They are also party to the Universal Declaration of Human Rights. These treaties very simply lay down the basic human rights a state needs to guarantee its citizens. Article 14 of ICCPR clearly lays down that: “All persons shall be equal before the courts and tribunals in the determination of any criminal charge against him or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
It goes without saying that military courts currently established in Pakistan are lacking in transparency and independence. The judges are simply not trained as legal experts to carry out proceedings. There is no transparency in the process and the evidence relied upon is largely based on the confessions of the detainee often obtained through interrogation and intimidation.
The current political instability within Pakistan does not fulfil the conditions set by international humanitarian law that allow military courts to be triggered.
-Moghees Uddin Khan
Pakistan’s international human rights obligations require the state to guarantee rights to persons who are detained or kept in prison. Offenders must be presented before the court within 24 hours of their arrest and under Article 10 of ICCPR, a person deprived of their liberty shall be treated with humanity and respect.
The decision to try citizens of Pakistan in military courts should not come as a surprise. Pakistan has a long history of establishing military courts by the sitting government fully aware of its repercussions. In 1977, Zulfiqar Ali Bhutto constituted “Summary Military Courts” under Article 245 of the Constitution for alleged rigged elections, which was followed by unrest in Punjab and Sindh. Citizens were blatantly deprived of their fundamental rights of filing a writ petition under article 199 of the Constitution – with such a move being declared unconstitutional by the High Courts in both Sindh and Punjab.
Under International Humanitarian Law, military courts can indeed be used to try offenders under circumstances involving armed conflict. The current political instability within Pakistan does not fulfil the conditions set by IHL that allow military courts to be triggered.
In the wake of the unprecedented attack on the Army Public School (APS) Peshawar in December 2014, military courts were established the following January as an impulse reaction. Initiating military courts to bring the perpetrators for the APS attack serves as an example where IHL standards were met to justify the establishment of the same, owing to the simple fact that the militants behind the APS attack were engaged in an armed conflict with the state itself.
With the establishment and trying of civilians in military courts, the government must be careful in fulfilling their human rights obligations in order for rule of law to flourish. Pakistan is well equipped with human rights laws, yet it utterly fails to implement or chooses not to.
- This writer is Associate Director at the International College for Legal Studies, and Co-Founder, Phir/Se-- a law and design consultancy working on highlighting the devastating effects of smog. Twitter: @moghees22