Chapter 1: Non-International Armed Conflict and Common Article III

Introduction

This chapter intends to discuss the fundamental matters related to military courts. This chapter includes the discussion on International Humanitarian Law and non-international armed conflicts. Moreover, the history of military courts and their establishment in Pakistan will also be brought in light.

Armed conflicts are usually divided into two categories, International Armed Conflict, IAC[1], and Non- International Armed Conflict, NIAC[2]. NIAC emerges whenever an internal disturbance is created, and the armed forces of the state get involved against the insurgents. In Pakistan, the army started its operations in its tribal areas after 9/11 and became one of the mainstream allies of America and NATO forces. This development lead Pakistan towards internal disturbance and chaos and thousands of civilians and military personnel lost their lives. Consequently, Pakistan Army launched certain operation to contain the situation in Tribal Areas. Meanwhile Tehreek e Taliban Pakistan, TTP, emerged as a strong party and took over the control of Swat which forced the people of Swat to leave their houses and vacate their area. Again, Pakistan Army had to launch an operation to settle them back in their houses[3]. The situation got worse when these insurgents attacked Army Public School in Peshawar Cantt. In this incident hundreds of children were massacred, and this event shook the whole nation. Following this event military courts were established in the country through 21 ^st constitutional amendment to try the terrorists which violates the minimum guarantees provided by common article III to all the Geneva conventions and provided by the constitution of Pakistan.

1.2 Legal Regime

1.2.1 International Humanitarian Law

International Humanitarian Law (IHL) is fundamental body of laws which were drafted to contain the effects of armed conflicts. IHL is also termed as law of armed conflicts. This law intends to protect those persons who are not taking part in armed conflict or who is no longer able to participate in hostilities. IHL is comprised of treaties, conventions and customary rules. Treaties and convention are binding on states because of the ratification while customary rules and general principles are followed as these are part of states’ practices[4].

IHL only regularize the armed conflicts so that the loss can be minimized as much as possible, but it does not deal with when to use force; this is governed by a distinct part of international law set out in the UN Charter[5].

1.2.2 International Human Rights Law

International Human Rights Law refers to laws which every human is entitled to enjoy. International Human Rights Laws also consist upon treaties and convention. States are obliged and bound to respect human rights treaties and they are required to ensure the respect for these treaties. It implies that not only states protect their subjects against human rights abuses but also it means that states are also required to avoid infringement over these rights[6].

1.2.3 International human rights law and international humanitarian law Interplay

International humanitarian Law and International Human Rights Law, both are distinctive from each other but still both are closely relevant to each other. Former is applied only when there is an armed conflict while later remain applied for all times. In true sense, they supplement each other as both set of laws are primarily concerned with the protection of humanity and human dignity. Moreover, the substance they carry is also quite similar to each other[7].

1.3 Non-International Armed Conflict

NIAC is not new phenomenon to the world but still countries are reluctant to address it as no country would wish to allow international community to get involve in their internal matters. Moreover, every state wants to deal with the culprits according to their own method and laws. Here, the important aspect was the state conduct during civil wars. Two legal instruments were there before 1949, one was The Liber Code of 1863 and it was promulgated during American Civil War, while the second was Rights and Duties of States in event of civil strife (inter-American). In 1921 a resolution was also adopted by ICRC concerning humanitarian issues during civil wars and it was also reaffirmed during another conference of ICRC in 1938. But the common article 3 of the Geneva Conventions was comprehensive and it covers almost every aspect. More importantly it was universally ratified. Dr Schindler has provided a definition as [8]:

"The hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be of a collective character, i.e. they have to be carried out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of organization. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements".

1.3.1 Jurisprudence of Non-International Armed Conflict

It has always been of great importance to define what an armed conflict is, more importantly to discuss what is a non-international armed conflict? As Geneva Conventions do not define this term expressly, so it would be suitable to rely on judgments. International Criminal Tribunal for Former Yugoslavia, ICTY, has discussed the matter and defined the phenomena of armed conflict not of international character as

“Whenever there is …… protracted armed violence between governmental authorities and organized armed groups within a State”. [9]

1.3.2 Threshold of NIAC

For establishing the presence of NIAC, mainly some features were focused. Firstly, the level of disturbance must go beyond the internal disturbance and secondly, among parties one must be the non-state militant group and state has deployed its regular military forces to deal with it. Furthermore, in 1979, one authority, reaffirming a certain intensity of the hostilities and organization of the Parties as guiding elements, observed:

“Practice has set up the following criteria to delimit non-international armed conflicts from internal disturbances. In the first place, the hostilities have to be conducted by force of arms and exhibit such intensity that, as a rule, the government is compelled to employ its armed forces against the insurgents instead of mere police forces. Secondly, as to the insurgents, the hostilities are meant to be of a collective character, that is, they have to be carried out not only by single groups. In addition, the insurgents have to exhibit a minimum amount of organization. Their armed forces should be under a responsible command and be capable of meeting minimal humanitarian requirements” [10] .

In its decision on jurisdiction in Tadić in 1995, the ICTY Appeals Chamber established that “whenever there is … protracted armed violence between governmental authorities and organized armed groups or between such groups within a State”.

1.3.3 Applicability of Tadić Criteria

In order to apply the Tadic Test in Tribal belt of Pakistan, it was held by many experts that since the intensity level in these areas have crossed the certain limit and now it would be secure to say that there exists an armed conflict which is, of course, of non-international character. However, it was also maintained by one expert that mere deployment of armed troops in those regions is enough to establish it as non-international armed conflict[11].

Consensus was not achieved when second part of the test was applied regarding the military organizations. It was said by certain experts that government should declare Tehreek e Taliban Pakistan (TTP) as an armed adversary in the armed conflict. But to this point many objections were raised as there are almost thirty other organizations working under the umbrella of the TTP and it is still quite difficult to consider as one voice or in single uniform[12].

1.4 Common Article III: Scope and Applicability

Common Article III is the most important and fundamental article of all Geneva Conventions which deals with the fundamental guarantees provided to combatants involved in NIAC. Common article 3 becomes ipso facto relevant once the situation meets the standards of NIAC. Under this article every high contracting party to the Geneva conventions is under international obligation to provide the fundamental judicial guarantees to the combatants involved in NIAC. It is important to note here that once the circumstances meet the threshold of non-international armed conflict, then other principles of International Humanitarian Law would also be applied. The above-mentioned article becomes more effective if it is read with common article I of the Geneva Conventions and it states

“The High Contracting Parties undertake to respect and to ensure respect for the present Convention in all circumstances”.

Common Article III, where it provides the minimum judicial guarantees it also prohibits many other acts which are strictly against the human dignity and honours. Under this article, the persons taking no active part in hostilities are protected against the torture, inhumane treatment, hostage and these guarantees must be fulfilled by all the high contracting parties.

Keeping in mind that common article 3 serves as an umbrella and under this very umbrella there are many other judicial guarantees expressly provided in all Geneva Conventions. These guarantees are:

· The principle of “ nullum crimen, nulla poena sine lege” (“no crime without a law, no punishment without a law”) (Art. 99.1, GC III) [13]

· The principle of “ non bis in idem” (“double jeopardy”) (Art. 86[14], GC III; Art. 117.3[15], GC IV)

· The right of the accused to be tried before an impartial and independent court of law without any delay (Art. 84.2[16], GC III)

· The right of the accused to be informed of the nature and cause of the offence leveled against him (Art. 104.2[17], GC III; Art. 71.2[18], GC IV)

· The right to access free legal counsel when the interests of justice so require (Art. 105.2[19], GC III)

· The right of the accused to be informed of their rights of appeal (Art. 106[20], GC III)

1.5 Military Courts

Court Martials which are commonly known as Military Courts are judicial court composed of commissioned officers that disciplines and penalizes convicted military personnel and military offenders. Such a court has jurisdiction over armed force members and enforces the code of military justice. There are generally three types of Court Martials that may have different make-up and quantum of punishment that they may impose[21].

· Summary Court Martial

· Special Court Martial

· General Court Martial

Summary Court Martial, only deal with enlisted personnel involved in noncapital offenses only and composed of one active commissioned officer. The punishments under Summary Court Martial are imposed based on the grade of present accused[22].

Special Court-Martialis been distinguished as misdemeanor court that can try all kind of all people being subject to UCMJ and includes enlisted members along with midshipmen and officials. Special court- martial can award any punishment except death, disgraced discharge, dismissal and detention for more than 1 year, can impose any punishment. It consists of one military judge and members which should not be less than three. The defendants may be tried alone on their request by the military judge[23].

General Court-Martialbeing the third type is often referred to as a felony court and may try all persons being subject to UCMJ Including members enlisted, military officers and midshipmen. It can impose any punishment including death penalty which UCMJ has not prohibited. It consists of one military judge and members not less than five and the defendant may be tried alone on his request by the military judge[24].

1.5.1 History of Military Courts

Military law like civil law dating back to the first century BC has been derived from Roman law. The Roman society was a militarized society single judicial system serving both, civilian and military needs[25]. In the eleventh century, following the introduction of the Roman legal system by William the Conqueror in England the dire need for separate legal systems grew[26]. Around sixteen century, the Court Martial in France and Germany started involving military and as early as the 17th century, Gustavus Adolphus in order to discipline his army develop a military law that was inconsistent with British common law[27]. Soon within the English military the Court-Martial procedures were introduced followed by England, which created a national military law system in 1649. After the passage of Mutiny Act in 1869, Parliament became involved in military justice and thus set an English precedent about legislative control over military issues[28].

The Second Continental Congress established a U.S. military after the epic confrontation between British troops and colonial militia forces in April 1775 at Lexington and Concord, Massachusetts. The Articles of War were adopted in the years 1775 and 1806, which were then modeled upon Mutiny Act and came in force in the Great Britain. Later annually renewed Army Act (reformed in 1955) replaced these Articles in the year 1881 in the British Army, however the continued their operation in navy till 1957[29].

The US in 1788 declared President as commander in chief and thus the right to declare war was handover to congress in order to provide support to raise army making civil control over military which was further affirmed in Dynes v Hoover Case[30]. Also, in 1863, the articles of war undergo some amendments which extended its jurisdiction to common law felonies though only if they happen in war. However, in 1866 the jurisdiction of Military Courts was regulated, and it was held in ex parte Milligan 1866 case [31] that the jurisdiction of Military Court will not be applicable to civilians. Owning to the criticism faced by the articles of war during World War resulted in the formation of Uniform Code of Military Justice (UCMG) in 1951 and also introduced US Court of Military Appeals[32]. The International Humanitarian Law (IHL) permitted establishment of Military Tribunals under Geneva Conventions, 1949 accompanied by its Additional protocols of 1977: and are also governed under national military manuals/codes.

Court martial are often confused with military tribunals as there is a slight difference between them and each type serves a specific purpose in the military court system. Court martial operates during peacetime however; military tribunal operates during wartime and may involve enemy combatants[33].

1.5.2 Military Courts in Pakistan

Military courts establishment as primarily to try military officials was a well-known phenomenon however there were times when their jurisdiction was extended over civilians. On 5th July, General Muhammad Zia ul Haq in the year 1977 proclaimed martial Law and the Constitution was suspended. Hence, Military Courts were established on 15 July 1977, and were later abolished when he restored democracy[34]. In Pakistan’s history along with military dictators, democratic government have also established such courts. For example, in Baluchistan summary military courts were established in Bhutto era for the purpose of eradication of political terrorism and secession. Formation of special' courts aimed to suppress acts of sabotage; terrorism and subversion were seen in October 1974 under Suppression of Terrorist Activities (Special Court) Act 1975[35].

Also on, 30 January 1998, after a series of violent incidents, the Nawaz Sharif Government for establishing military courts have amended the, Pakistan Armed Forces ordinance,1998 for trying accused of various offences parallel to promulgation of Anti-Terrorism Act 1997 however such military court establishments set up under Bhutto and Sharif regime, were challenged individually in the apex courts[36]. In Darvesh M. Arbey v. Federation of Pakistan [37] along with Niaz Ahmed Khan v. Province of Sindh[38], military courts during the Bhutto regime were challenged before Lahore and Sindh High Courts (SHC) respectively. In both cases the superior judiciary maintained the unconstitutionality of these summary courts and restricted the acts of civil authorities and security forces within constitutional parameters and limits[39]. Same principle was held in Liaquat Hussein v. Federation of Pakistan, in which Supreme Court, by Chief Justice Ajmal Mian, banned the military courts setup during Sharif‘s regime and declared them unconstitutional and ultra vires. It further stated that provisions of the Ordinance that extended the jurisdiction of military courts to civilians were unconstitutional and that a trial by independent and impartial courts is a fundamental right of all citizens of Pakistan[40].

Keeping in view the armed forces personnel are under the final administrative supervision by the military command along with federal government, The Supreme Court of Pakistan held that such courts do not meet essentials of impartial, independent and competent tribunal. Furthermore, it was held that existence of parallel judicial system is impossible to sustain as executive is not authorized for judicial setup of courts lacking superintendence and control by the apex court as enshrined in Article 203 of constitution. Any set up of such courts are ultra vires to constitution and potentially violates essential provisions such as Article 2A, 175 and 203 along with articles entailing fundamental rights and infringing the principle tracheotomy of power and fair trial right cannot be justified at any cost even reasoned as public emergency or the doctrine of necessity[41]

1.5.3 Military Courts Reestablished in Pakistan

With the passage of Supreme Court‘s judgment given in Liaquat Hussein v. Federation of Pakistan the operation of special military courts came to an end until on 7 January 2015, following the tragic Army Public School Attack by terrorist in December .The military courts were once again revived in order to a try civilians for offences related to terrorism. The TTP led massacre witnessed the killing of nearly 140 persons most of them children in a School in Peshawar[42]. The government with support of some other political parties amended the constitution through 21st constitutional (Amendment) Act [43] 65 and Amy Act, 1952 though Pakistan Army (Amendment) Act, 2015 to give constitutional cover to military courts as such amendments were unopposed as 247 Members of National Assembly and senate voted in favor thus establishing military courts for speedy dispense of justice by expedient tail of terrorists. Both amendments had a ―sunset clause‖ of two years and ceased to be in effect on 6 January 2017.During this time was given ample time to bring necessary reforms in criminal justice system for strengthening the anti-terrorism institutions.

In December, 2014, National Action Plan was announced under the Premiership of Nawaz Sharif and establishment of Army courts were among the points mentioned in NAP to try hard-core terrorist[44]. Such special courts were predictable as the execution orders had come out prior NAP was hammered out on December 24th, 2014 and the moratorium on death penalty were then lifted after seven years on December 16th following the execution order of six terrorist been signed by army chief General Raheel Shareef[45].

Military Courts finally established with their jurisdiction extended over civilian that are accused of terrorism motivated by religion or sectarianism and the rationale behind this was to have expedient and speedy tails[46]. Till now total amount of military courts are nine including three in Punjab and KP each, two in Sindh and only one in Baluchistan. The legal procedure to transfer cases to military court is through interior ministry as each province will transfer cases. It is composed of military officials instead of civilian judges who are not under obligation to have law degree[47]. Military Court of Appeal is the highest Appellate forum under Army Act and COAS approves the sentence of the appellate forum. Such courts operate under army legal wing headed by Judge Advocate General[48].

So far, military courts have tried 646 people, finding the defendants guilty in at least 641 cases (a rate of 99.2 percent). Around 345 people have been awarded with capital punishment and 296 people have been given imprisonment sentences. At least 56 out of the 345 death sentences have been executed[49].

As happened in past the constitutionality of these special courts was questioned and challenged by LHCBA on similar grounds as made in past. Matter was taken up by the Supreme Court which contrary to its history upheld the 21st constitutional amendment hence validating the army courts.it has given right to challenge convictions before apex courts which can do judicial review on grounds of lack of due process and fair trail infringement[50]. Owing to sunset clause been expired, the military courts disbanded on January 7,2017 but then extended for two more years through amendment Amy (Amendment) Act,2017 and 23rd Amendment to the Constitution later termed as 28th Amendment[51].

1.5.4 Rationale behind Military Courts

The rationale given behind the establishment of Military courts in Pakistan was that the ordinary criminal justice system was not efficient to bring the culprits to justice. Moreover, the proceedings in criminal cases are not speedy and the standards of evidence are of such nature which provides benefit to the accused and consequently, many of them got acquitted. The proponents of the military courts also said that the criminal courts including Anti-Terrorism Courts do not possess the will to convict the culprits. Another rationale provided by the proponents of the military courts was that, the judges were not feel safe and because of their personal security concerns it becomes almost impossible for them to do justice without having any fear in their minds[52].

1.6 Supreme Court Judgment in 21st Constitutional Amendment and Pakistan Army (Amended) Act 2015 Case

A detailed was given in this article regarding the judgement of the Supreme Court and many dimensions have been discussed. Arguments given by Petitioners in their favor and arguments from honorable judges while writing down the judgement have also been discussed in detail. Although the majority of the judges held that the military courts are not constitutional courts but even then majority of the judges upheld military courts merely because circumstances required so. Justice Azmat Saeed disregarded the basic structure doctrine and held that since the acts of the terrorists have a direct nexus with the defence of Pakistan and legislature is competent enough to help the government to deal with it[53].

Justice Jamal while giving his judgement keep the principle of judicial review as a settled law. On contrary to this, Justice Faiz Isa and Jawed S Khawaja held that Supreme Court is competent to strike down any legislation of the Parliament which is ultra vires the Constitution. The current amendment is liable to strike down as it is against the fundamental rights and also it contradicts the basic structure doctrine. Justice Fiaz Isa also mentioned that established of the Military courts under the notion of war threat has already been rejected by the Supreme Court in Liaquat Hussein Case. Justice Sarmad Jalal Osmany justified the military courts as he said the since the nation is at war and desperate times call for desperate measures[54].

Justice Ejaz Ahmed, Justice Ejaz Afzal and Justice Dost Muhammad, they held the establishment of the military courts is ultra vires the constitution as it compromises the independence of Judiciary. Justice Dost held that if the terrorists fighting against army are being tried by the Army, it shall militate the principle that no one can be a judge in his own cause. Justice As if Saeed upheld the judicial review but surrendered before the sovereignty of the Parliament as he said that it is the sovereignty of the Parliament which ensures true democracy[55].

1.6.1 Analysis of the 21 ^st amendment judgement

In this case, the core issue was the right of fair trial. Whether it is being afforded to civilians or not. In its judgment the Honorable Supreme Court mainly relied upon Ali Case of 1975[56]. The Court held that:

“The process and procedure followed by the forums, established under the Pakistan Army Act, have come up for scrutiny before this Court and found to be satisfactory and consistent with the recognized principles of criminal justice. In Ali Case 1975 the procedure to be followed for trials under the Pakistan Army Act was dilated upon in great length and found to be in conformity with the generally accepted and recognized principles of criminal justice. A similar view was also expressed by this Court in Mrs. Shahida Zahir Abbasi 1996. The provisions of the Pakistan Army Act were scrutinized by the Federal Shariat Court in Col. (R) Muhammad Akram 2009 and generally passed muster. The procedure which was found acceptable for officers and men of the Pakistan Army can hardly be termed as unacceptable for trial of terrorists, who acts as enemies of the State” [57].

First of all, Brig. Ali and others were military officers and accused of waging war against the State to arrest the senior military leadership. They all were arrested and tried by the General Court Martial. They had objected to the military courts jurisdiction but that was overruled. Then they applied but was overturned and finally Supreme granted them leave to appeal[58].

In Supreme Court Justice Anwar ul Haq relied upon the fair trial criteria established by Justice Munir, that was based upon the points regarding the rights that an accused holds. These points include the right to know the charge and the evidence being brought against him, the right to conduct cross examination of prosecution witnesses, the right to produce evidence to prove his/her innocence, the right to hire a counsel of his/her choice, the right to ask for transfer of case and the right to trial by jury, this right is no longer being operated in our judicial system[59].

Apparently, the criteria provided by Justice Munir is available in military courts, but the question arises when military courts deny the right to appeal to higher judiciary and only allow the appeals before Commander-in-Chief or to the federal government under section 131 and 167 of the Army Act. Another important observation was made by Justice Haq that in military courts there is no concept of reasoned judgment and a reasoned judgment is not penned down for appellate court, but it is for the benefit of the accused[60].

It is important to note that in 1975 the criterion of fair trial was based upon Articles 9 and 10 of the1973 Constitution, the UDHR and the ICCPR. Although Pakistan was not a party to the UDHR and ICCPR but even then, Justice Anwar could have sought guidance from them, but he relied upon Justice Munir’s criteria[61].

In 1996, in Shahida Zahir Abbasi case[62], Supreme Court again relied upon the Ali case and held that Military Courts do not violate any right related to judicial principle related to the trial of the accused. Then once again, in Muhammad Akram[63], Federal Shariat Court relying upon Ali and Abbasi case held that Supreme Court had held that “trial before military court is in no way contrary to the concept of a fair trial in a criminal case”[64].

The major flaw which is evident in the judgement is that some factual position was completely ignored by the Supreme Court, with due respect. Article 9, 10 and 10A, the UDHR, the ICCPR and some leading judgments of the Supreme Court were not considered. As a matter of fact, in 1975, the right to fair trial, 10A, was not mentioned in the Constitution meaning there in now the fundamental rights and right to fair trial are on high pedestal. Furthermore, Pakistan, in 2010, came under some new international obligations as Pakistan acceded to ICCPR. In Gillanicase[65] , the Supreme Court maintained that since the legislature did not afford us the ingredients of the notion of fair trial so it would be assumed applied in universally recognized meaning. Further, in Military Court case, the honorable Supreme Court should have left the Muni Criteria and relied upon the constitution and judgements of the court but again honorable Supreme Court relied upon Ali case and adopted the previous approach to justify the establishment of military courts through Article 8(3) of the Constitution which means that the court cannot assess the compatibility of military courts in terms of fundamental rights. Also, military justice system fulfils the criteria of fair trial. Then on August 29, 2015 Supreme Court barred leave to appeal against death sentences passed by military courts to terror suspects[66].

1.7 Pakistan under its international obligations

The Geneva Conventions deals with the situations related to Non-International Armed Conflict. The Covenant on Civil and Political Rights is of universal character and it contains certain articles which contains the rights related to life, liberty and free trial. This covenant also prevents the cruelties against human dignity and provides safety to the fundamental rights[67].

The Universal Declaration of Human Rights is the first and the fundamental document related to human rights and it was adopted soon after the World War 2. It was adopted universally, and it provides rights of civil, political and economic nature. This document also establishes the right to fair trial of every single individual. Being a party to Geneva Conventions, UDHR and ICCPR Pakistan under international obligation to ensure respect and implement these treaties[68].

1.8 Conclusion

After analyzing the circumstances mentioned above, it becomes clear that the military courts established in Pakistan is the gross violation in terms of its international obligations and also it goes against the fundamental rights provided in the Constitution of the Pakistan. It also appears that after Peshawar incident, since the whole nation was in a state of shock and in those circumstances this decision was made, and the commitments made by Pakistan to the international community was utterly ignored. Such ignorance does not only violate the fundamental rights like right to fair trial and equality before law but also completely fails to safeguard the minimum judicial guarantees recognizer by the civilized World.

Chapter 2: Scope of Military Courts in Pakistani Legal System

2.1 Introduction

In this chapter, we will analyze the criminal justice system of Pakistan. This chapter will provide an insight to the system that what guarantees are provided by it and what are the shortcomings of the system. Furthermore, we will see the role of Anti-Terrorism Courts in convicting the terrorists.

In Pakistan criminal justice system, there are a number of instruments to deal with the terrorism. Criminal procedure code is the basic procedural law which is applied almost for all criminal proceedings. Pakistan penal code is the basic substantive law which contains the definition of the offences then also prescribe punishments for them. Since Pakistan is facing sedition of terrorism for a long time so it has developed a specific instrument for terrorism which supplements the criminal procedure code and Pakistan penal code. The anti-terrorism act of 1997 and the special courts formed under this Act are the specific instruments developed for counting terrorism. Further, the protection of Pakistan Act and the 21 ^st Constitutional amendment all are the measures taken in the same regard to eliminate and eradicate the terrorism. Before establishing military courts, Pakistan already had a proper judicial system to try the terrorists. Although questions can be raised regarding the performance of the courts, but it cannot be denied that proper laws and courts were there before.

2.2 Criminal Justice System of Pakistan

The criminal justice system of Pakistan is governed through statutes and it is further supplemented by government agencies for its practical enforcement. The criminal justice system is based upon two set of law, substantive laws and procedural laws. The said system in Pakistan comprised of many enactments including Pakistan Penal Code, Code of Criminal Procedure, Qanoon e Shahadat Ordinance and other statutory laws like Anti-Terrorism Act and Anti-Narcotics Act etc. For the purpose of its practical implementation, there are certain departments which are working to enforce these laws. These departments are police, prosecution and courts.

It is pertinent to maintain here that the Criminal Justice System of Pakistan follows the Anglo-Saxon jurisprudence. This was established Honorable Supreme Court in Federation of Pakistan v. Gul Hasan Khan [69] that under Anglo-Saxon Jurisprudence, society is represented by state and resultantly state becomes a party in offences against person and property. State has the authority to launch prosecution, withdraw prosecution and to pardon after conviction. These all are the manifestations of this feature. Similarly, in Matlub [70] Hussain case, it was clearly mentioned that in a murder case, no other person except the accused who is being prosecuted or the Crown (now the State) at whose instance he is being prosecuted, appeared to be the parties.

2.3 Legal mechanism to try terrorists prior to Military Courts

2.3.1 Anti-terrorism Act and Code of Criminal Procedure

Before ATA, we have PPC for dealing with all the offences whether of ordinary or extraordinary nature. Particularly, talking about the terrorism and situations related to non-international armed conflict. PPC contains the provision regarding the offences against the state of Pakistan and against the armed forces of Pakistan. The offence of hijacking is also included in the penal code. So, we can say that even before ATA, we still had something against the terrorism though not that much. But as the problem became more intense and critical a special instrument under the title of Anti-Terrorism Act was enacted and Anti-Terrorism Courts were established. After 1997, after the enactment of ATA, it became the primary substantive law against terrorism. While Cr.P.C remained the procedural law for it. Cr.P.C is applicable to this Act as long as is it consistent with its provisions. While these special courts are still there, military courts were established through 21 ^st Constitutional amendment. The procedure adopted by the military courts was quite alarming and created doubts in minds for justice.

2.3.2 Anti-terrorism Courts

To setup special courts, is not an alien or new thing in Pakistan. Even military courts were established before to try terrorists. This is quite usual in Pakistan to establish parallel judiciary in order to secure speedy justice[71]. Certain laws were promulgated in our history to deal with terrorism and terrorists’ actions. These laws include: Special Courts for Speedy Trial Ordinance 1987, The Terrorist Affected Areas (Special Courts) Ordinance and Act 1990 and 1992 respectively and Anti-Terrorism Act 1997. Through Anti-Terrorism Act special courts were also established. These courts were established for expeditious, timely and inexpensive justice. The ATC was the idea of the then prime minister, Nawaz Sharif[72].

The basic purpose of this Act was to prevent terrorism and sectarian violence by providing speedy trails for heinous crimes against humanity[73]. Again, like past these courts breached the independence of judiciary as executives monitored such courts. The law was product of haste and timely amended by Supreme Court through Mehram Ali case [74] under which different provision of this act was amended and making it practical and public friendly. On October 24, 1998, the Anti-Terrorism (Amendment) Ordinance was issued. This case acknowledged the significance of independence of judiciary enshrined in Article 175 of the Constitution. Justice Irshad Hassan Khan, Chief Justice of the Supreme Court of Pakistan, made very strong observations in the said case[75]. The amendment included following essentials changes[76]:

· DD The tenure of office for judges were granted.

· The decisions of ATC were made appealable to the High Court and ultimately to the Supreme Court Special by disbanding appellate.

· To accord ATC with regular legal procedures the trails in absentia were restricted.

Since the amendment the ATA has been amended numerous times [77] to extend the range of crimes covered under the act[78]. However, the establishment of ATC could not achieve the goals set at the time of its formation due to security concerns on part of judges, state prosecutor and defence counsel leading to delaying of hearings and massive dockets of cases resulted in backlog in these courts nationwide[79]due to lack of basic resource and understaffing of such courts. Enough funds were not been generated by government resulting underdeveloped infrastructure causing plague to Pakistani legal system at large[80]. Moreover, the state prosecutors for ATC’S were not given scant resources availed by regular session courts. As a result, ATCs have failed to deliver on their primary mandate—quick justice. A history of political victimization has been attached with anti- terrorism cases thus challenging the credibility of convictions and decisions by ATCs. Soon after the passage of ATA claims of human violations were reported internationally, even Amnesty International rejected the formation of special courts[81]. Under such circumstances ATC could not combat the terrorism situations in Pakistan and once again the establishment of special courts‖ failed to achieve the goal to eradicate terrorism and dispense of speedy justice[82].

All the laws that were made to combat terrorism were taken as extraordinary steps in extraordinary situations. Time and again the governments switched to special courts resulting in a parallel legal system as evident in history of Pakistan. Despite having ATC, the government of Pakistan after Peshawar attack on Amy Public School in 2014 again switched to military led special courts as only remedy to combat the uprising of terror and security threat during that time.

2.3.3 Constitution of 1973

Being the supreme law of the land, constitution is always held superior to any other law. All other laws seek their validity through the constitution. It is the constitution that guarantees the integrity of the state and also the protection of the subjects of the state through fundamental rights. The right to fair trial is also given in the constitution as a fundamental right[83]. The constitution has incorporated some fundamental human rights from Universal Declaration of Human Rights into the constitution. Surprisingly, the right to fair trial was not included initially but later it was made part of the constitution as a fundamental right through 18 ^th amendment.

Justice Qazi Faiz Isa and Jawad S. Khawaja, while giving their dissenting notes in 21 ^st also pointed out that in Liaquat Hussein Case, Supreme Court already held that military court cannot be established even under the notion of war. They also maintained that the right to fair trial would be violated if military courts established[84].

2.3.4 Eighteenth Constitutional Amendment

In Pakistan while determining the constitutional and political curves the 2007 proved to be decisive year, and success behind the harmony on 18th Constitutional Amendment is the result of the 2008 election; the circumstances leading towards political reunion in the assembly, Benazir Bhutto murder and the rattle of Gen. Musharraf with judiciary[85]. On April 8, 2010 it was conceded by lower house of the parliament and the upper house agreed it on April 15, 2010 whereas it converted into an act of parliament after President Asif Zardari has ratified the bill on April 19, 2010[86]. The 18th Amendment syndicates in itself nearly 100 amendments and it has affected 83 articles.

As numerous amendments took place in which the Fundamental Rights chapter I of Constitution, some of the worthy things have been introduced as to assure the right of each citizen of Pakistan to enjoy fair trial, a new article (10-A) [87] have been inserted. Another important change presented through the 18th Amendment was under article (175), formerly solely Supreme Court and 4 provincial High Courts were contained in clause (1) of that article currently Islamabad High Court has as well been introduced in it.

Fresh article 175A was incorporated in the Constitution which contains the Judicial Commission as well as Parliamentary Committee[88]. These were few amendments that took place and which was later challenged with 21st Constitutional amendment with regard to fair trial (fundamental rights) and Army Act 1952 (creation of special courts to try terrorism related offences) under article 175 which was argued to be made to be declared as unconstitutional to the basic doctrine of Constitution.

2.3.5 Military Courts and Army Act

Army courts are formulated under Army act 1952 and in Army Act 1952 many changes were brought like article 145 [89] of the Constitution directs upon Armed Forces to act.

A military court is composed of 3 to 5 serving officers of the military and no legal education nor legal training is required of the serving officers[90]. Culprit individuals have the right to appeal before the military appellate tribunal. Though, criminals may have verdicts of the military courts ―reviewed by civilian courts under army act 1952. The Chief of Army Staff (COAS) himself or some other personnel nominated by him, also sits in the appellate tribunal. In the Army Act the rules of evidence in proceedings before courts martial are the similar as those perceived by regular civilian criminal courts. Likewise, it does not ―necessitate that trials in courts martial or court martial appeals‖ are done publicly.

The 2 years is the duration period of the amendment and the insertion in the § 2 of the Army Act (Individual subject to this Act i.e. Servicemen). Similarly, through Court Martial no trial of the case would be conducted without prior sanction of Federal Government and might handover cases waiting in other courts which earlier proceedings would be retained. This law has the overriding affect and shall prevail if some conflict arises.

These were some changes that were brought in Army Act 1952 which lead to the debate to before Judiciary, after which adjudicators of Supreme Court of Pakistan heard and decided the case accordingly.

2.4 Basic Structure Doctrine

The rationale behind the very concept of Basic structure doctrine is that there must be no free space for institutions to function nor to issue a blank cheque to do whatever one wish to. In favor of this doctrine there are legislative instruments and judgements of apex courts. This very doctrine works to secure the and fundamental features of the Constitution. This doctrine was incepted from Basic Law of Federal Republic of Germany, 1949 [91]. At the time of promulgation of the Basic Law of Germany, the text contained Article 79 , which expressly bars the legislature from amending the “division of the Federation into Laender” , “the participation in principle of the Laender in legislation”, and “the basic principles laid down inArticles 1 and 20”, of the Army courts are formulated Germany[92] .

The judicial inception of the doctrine is on the credit of Indian Superior Courts. The Indian lawyers were enlightened by the work by Professor Dietrich Conard of Heidelberg University, he authored the doctrine and said that the basic structure of the Constitution cannot be changed. Thus, through the efforts of Indian lawyers, wisdom of Indian judiciary and the work of Prof Dietrich made the doctrine an integral part of Indian Jurisprudence[93].

The superior Courts of Pakistan have always shown reluctance in applying this doctrine. Consequently, superior could not establish her position on concrete terms In this regard, it is important to discuss the certain cases, where apex courts of Pakistan adopted the doctrine but only impliedly and so expressly.

2.4.1Fazlul Quader ChowdhryVs. Muhammad Abdul Haque

The terms ‘nature’ of the constitution, and ‘basic provisions’ has firstly been used in the case of “Fazlul Quader ChowdhryVs. Muhammad Abdul Haque”[94]where the court while deciding the scope of Article 224 of the 1962 Constitution, held that the “aspect of the franchise, and of the form of the Government are fundamental features of a Constitution” and therefore “the Constitution was not intended to be varied according to the wishes of any person or persons”.

12.4.2 Syed Zafar Ali Shah Vs. Federation of Pakistan

In Syed Zafar Ali Shah Vs. Federation of Pakistan[95], this Court held that

“the Constitution of Pakistan is the supreme law of the land and its basic features, i.e., independence of judiciary, federalism and parliamentary form of government blended with Islamic Provisions, cannot be altered even by the Parliament”.

On the matter of Martial Law, the honorable Supreme Court permitted the government to amend the Constitution provided that the basic structure of the Constitution, mentioned above, could not be changed.

2.5 Military Courts and Independence of Judiciary

In Great Britain, there exists no written constitution, judicial system is not limited to the civil courts only rather it shares the powers with military courts, or any other courts entrusted with judicial powers. So, it is lawful there that military courts can exercise the judicial powers of the State as civil courts are authorized to do so[96]. While in countries which governed through written constitution, the situation is different. As in America military law refers to a system by which military forces are governed[97]. Distinction is made between the courts martial and martial law courts. Former refers to the courts which established to maintain discipline and govern the conduct of armed forces[98]. While later refers to the courts which are established by military government in an occupied territory. Martial law courts are established only when the judicial system of the country is obstructed, and martial law supersede the civilian and they become the subject to military rules.

In Pakistan, the military courts cannot share the judicial powers lawfully. The reason behind is that the armed forces are part of the executive authority of the State. Now to allow military courts or consider them to be legal to try civilians would endanger the basic feature of the Constitution and that is the independence of judiciary. Furthermore, it is also the negation of trichotomy of power.

2.5.1 Rationale behind independence of Judiciary

The independence of judiciary is the logical result of the federation. The courts have assigned two functions from the very beginning of their history. One of those functions is to interpret the law while the second function is to adjudicate upon the legality of the exercise of power by other functionaries of the state[99]. More importantly, as all the rights have been expressly provided in the Constitution. These rights are against the state as state is duty bound to provide and secure these rights. So, judiciary has also the role to ensure that none of state organ or functionaries could violate these rights. The nature of the tasks, mentioned above, requires that the judiciary must remain independent. Otherwise, the very function of the judiciary would be compromised[100].

In Pakistan, the independence of judiciary has never been ignored or left to be implied. The preamble of the Constitution declares that “The will of the people of Pakistan to establish an order, wherein the independence of the judiciary shall be fully secured” Moreover, the position of the constitution has repeated in Article 2A[101], which is the operative part of the Constitution. Therefore, Independence of judiciary is one of the primary principles of the Constitution and the relevant provisions of the Constitution must be read with that principle to ensure the independence of judiciary. This was the basic principle on the basis of which many cases were decided in judicial history such as Azizullah Memon v. Government of Balochistan[102], Imran v. Presiding Officer [103] and Mehram Ali v. Federation of Pakistan [104] where impugned legislations were declared unconstitutional. In Sharaf Faridi case [105] the court held that judiciary is independent of the executive and legislature has jurisdiction over all issues of judicial nature, directly or through review.

2.5.2 Characteristics of Independent Judiciary

Judicial independence is a status-oriented concept, it maintains the court status and emerges in terms of its relationship to other organs or entities, particularly executive. The core characteristics of independence of judiciary are security of tenure, financial matters and administrative affairs[106]. This was provided by the American Declaration of Independence, which attacked the British King for making the colonial judges. Such appointees were dependent upon his will for their tenure and salaries. One of the founding fathers of America, Hamilton, said that:

“Next to the permanency in office, nothing can contribute more to the independence of the judge than a fixed provision for their support . . . . . . .in general nature course of human nature, a power over man’s subsistence amounts to a power over his will” [107]

2.5.3 Independence of Subordinate Judiciary

Judicial independence is not a norm or any custom rather it is an established principle, provided by the Constitution. This principle holds no exception and extends to all courts. In Sharaf Afridi Case and Azizullah Memon Cases, it was held that under Article 175 of the Constitution judiciary is absolutely separated from executive and this separation and independence is being extended to all levels of judiciary from highest to lowest[108].

2.5.4 Rule of Law

According to Dicey, “rule of law does not mean that nobody is above the law, but it means that every person, whatever his ranks are, is subject to the ordinary law of the realm and amenable to jurisdiction of the ordinary courts”. The concept of rule of law is featured as to bring uniformity, neutrality and predictability. It contains the concept that governments exercise their power but can never go beyond the scope of established rules and laws and laws must be applied with uniformity across the board[109].

Article 4 and 5 of the Constitution provide the notion of rule of law. Article 4 furnishes the guarantee to its subjects that even in the time of emergency when fundamental rights stand suspended, the right to life, liberty, body, reputation or property of any person shall be protected and every action shall remain under the framework of the law. On the other hand, Article 5 stresses upon the duties and it demands from the subjects to remain loyal to the Constitution and State.

2.5.5 Separation of Powers

A state acts through its organs which are legislature, executive and legislature. Separation of power is pivot point of American constitutional scheme and it is followed by all systems where American system is adopted. Not only this, the scheme is also accepted even in the unwritten constitution of the United Kingdom[110]. Although the scheme is accepted and adopted in many constitutions but in American model it is more effectively applied. In Parliamentary systems, the executive organ is established through legislature while in American system ensures the separation only from judiciary and other two organs but also separates executive from legislature.

2.5.6 Separation of Power and Pakistan Constitution

The concept of separation of power is not expressly provided in the Constitution. But it is scheme of the Constitution from which the concept of separation of powers can be inferred. As the Constitution is based upon the Parliamentary system but it deals with organs of the state separately. It separately deals with the organs and empowers executive, legislature and judiciary with obvious distinction[111]. So even not so expressly, it is implied thatthe Constitution does provide this scheme a handsome space in the Constitution. In recent past, many judgments have been given by higher judiciary in which not only this scheme is discussed but the courts emphasized to keep the organs separate for good.

In a judgement Supreme Court held that in order to remove the disarray regarding the Constitutional arrangement about the division of power among the principal organs of the State, the executive, the legislature and the judiciary, each being the master of its domain under the Constitution. In Sharaf Faridi Case, it was expressly held that the judiciary and executive must remain separate from each other as the Constitution. Same position was repeated by the Supreme Court in Azizullah Memon case in 1993, then in Al-Jihad Trust Case in 1996, then in Mehram Ali Case in 1998 and again in Liaquat Hussain Case in 1999. Repeatedly Honorable Supreme Court kept saying through its judgements that the domain of function between executive and judiciary must remain separate. In Liaquat Hussain Case [112] the Honorable went to the extent that even under the notion of the establishment of military courts cannot be justified.

2.6 Al-Jihad Trust Case

Al Jihad Trust vs. Federation of Pakistan [113] signifies the appointment of judges to the superior courts. To minimize the role of the executive, the phrase “after consultation with Chief Justice” in Articles 177(1)11, 193(1)12 and 203-C (4)13 of the constitution have been interpreted by the Supreme Court in Al Jihad Trust vs. Federation of Pakistan, PLD 1996 SC 324 the Court while deciding the case gave the priority to the advice of the Chief Justice. The Court held that there must be no unfairness and the consultation between government and judiciary should be effective, meaningful and purposive.

2.7 Liaqat Hussain Vs. Federation of Pakistan

In this case, the military courts, established by the government to try civilians, were challenged. The courts were established under Article 245 of the Constitution to call military to act in aid of the government. The Court held that the military courts established under Article 245 were unconstitutional. Court further said that establishing the military courts to try civilians are unconstitutional since they form a parallel judiciary. It was further held that no courts can be established by superseding the Article 175 of the Constitution. Moreover, the Court referred to the Sharaf Faridi Case in which it was decided that executive must remain separated from judiciary. On the question of fundamental rights, the court that trial of civilians in military courts is violative to the fundamental guarantees provided in chapter one of the Constitution because such rights cannot be suspended unless there is an expressly stated provision in the Constitution.

2.8 Darvesh M. Arbey v. Federation of Pakistan

In Darvesh M. Arbey v. Federation of Pakistan [114] along with Niaz Ahmed Khan v. Province of Sindh[115], military courts during the Bhutto regime were challenged before Lahore and Sindh High Courts (SHC) respectively. In both of these cases the superior judiciary maintained the unconstitutionality of these summary courts and restricted the acts of civil authorities and security forces within constitutional parameters and limits.

2.9 Role of Judiciary and Executive under the Constitution

Article 175 of the constitution of Pakistan states that “the judiciary shall be separated from the executive” and this is the established principle of the Constitution which has been repeated more than once in the Constitution. This is the position which is still appealing to a man of ordinary prudence. Independence of judiciary and her separation from executive is the core value of the Constitution. That is why in appointment of judges, the primacy is always given to the opinion of Chief Justice.

It could be argued that tribunals are created under a specific provision of the Constitution (Articles 219 [116] and 225[117]), therefore their process of appointment does not need to be the same as the appointment of judges under Article 175. Moreover, the Constitution does not expressly require that the appointment of judges to these tribunal must comply to criteria fixed for judges of regular courts.

The question is that whether these Tribunals perform the judicial functions and also are they obliged to follow the same safeguards as followed by normal courts? Supreme Court replied to these ambiguities in its decision[118], Supreme Court held that the service tribunals under Article 212 of the Constitution, are courts and all the precautionary measure and safeguards applied in the exercise of judicial functions apply to them.

2.10 Conclusion

Military courts are not an alien concept in Pakistan. Previously, these courts were established but higher judiciary always played her part in upholding the right cause of justice. The fundamental position to the matter relates to the notion of separation of power which was upheld by the judiciary through her landmark judgments. Similarly, the basic structure doctrine, notion of rule of law and independence of judiciary have always been held in high pedestals by the honorable Court. In the light of previous landmark judgments, fundamental rights, the independence of the judiciary and keeping in mind the concept of fair trial, the establishment of military courts still seems to be an irrational and justified step taken by the legislature and judiciary.

Chapter 3: Flaws in Military Justice System and Pakistan’s International Obligations

3.1 Introduction

In this chapter, the procedural flaws in military courts proceedings will be discussed. Furthermore, the international obligations of Pakistan will be analyzed, and can military courts be justified on the basis of International Human Rights Law and International Humanitarian Laws and what is the position of the Constitutional fundamental rights over the matter?

The attack on Army Public School in Peshawar horribly jolted the Pakistani nation and it raised a wave of anger throughout the country. After this attack military courts were established in Pakistan try civilians involved in terrorism related offenses. These courts were established through 21st amendment in the Constitution and Pakistan Army Act, 1952. Military courts were empowered, through this amendment, to try civilians who are involved in terrorism related offenses or who are members of terrorist organizations or anyone who is using the religion or any sect for terrorist activities.

3.2 Fundamental Violations in Military Courts System

While the entire system of Military Courts/Justice is involved in the gross violations of judicial standards and guarantees but only few will be discussed below.

3.2.1 Right to Fair Trial

Right to Fair trial [119] is very vast concept. Right to fair trial is the fundamental right provided and protected by the Constitution. Code of criminal procedure, which is the basic procedural law, also provides the procedure to be followed in any criminal case from filing of F.I.R to trial and at every single step it ensures the protection of judicial guarantees. Anti-Terrorism Act being a special to deal with terrorism also safeguards judicial guarantees.

3.2.2 Equality before Law

Constitution of Pakistan under Article 25 [120] provides equality before law to its subjects. This notion implies that all citizens of Pakistan shall be treated equally and without any discrimination. It cannot be afforded that different laws and procedures will apply to citizens. That’s why it is the requirement of the law to try all the criminals in the same manner.

3.2.3 Right to Life

Right to life is the fundamental right provided by the Constitution [121] and it is also the integral part of the Natural Law. But it would be quite insane to consider it protected once the right to fair trial and equality before law is grossly violated. If military courts do not afford the accused the right to fair trial, then how his/her right to life is safeguarded.

3.2.4 Minimum Judicial Guarantees

Military Courts established in Pakistan, not only violates the fundamental rights but more importantly, it violates the minimum judicial guarantees provided by the common article III [122] of the Geneva Conventions which Pakistan has ratified, thus it becomes binding for Pakistan. Moreover, it is also the international obligation of Pakistan to ensure respect for international humanitarian law coupled with its application[123].

3.3 Procedural Flaws in Military Courts

Besides many other objections on the legality of military courts, the procedure adopted by the military courts create more doubts in the minds of the people. The method of referral cases lacks transparency, inadequate information regarding cases, moreover, in camera hearing and the secrecy in hearings are such problems which make it hard for public to have any faith on these courts. It seems that military courts were not made on legal grounds rather it was a political matter[124].

Here again we need to recall the dissenting note penned down by minority judges in 21 ^st amendment case. The view held by minority judges was that, establishing military court would violate the guarantee of fair trial, which is the state responsibility through its constitution, and it is also the part of its international obligation because of Geneva Conventions and many other human rights conventions[125]. Justice Faiz Isa, pointed out the flaws existed in Anti-terrorism Courts and maintained that through removing those flaws, the combatants can be tried lawfully.

3.3.1 Referral Cases

So far, no proper or specific criteria have been provided to people through whom the cases are being transferred or referred to military courts. Apex committees were formed at provincial level, comprising of military and civilian personnel to select cases for military trial and then they send a list of such cases to interior ministry. After checking out the list the interior ministry referred the cases to the military courts for trial[126].

3.3.2 Composition of Military Courts

Under the Army Act, a military court consists of up to five serving officers of the armed forces and their legal training or education is not necessarily required to discharge judicial functions. While performing judicial functions military officers remained subject to obey military chain of command. [127] Judge Advocate General branch provides a law officer to assist the military court, but his opinion is only of recommendary scope.

3.3.3 Secret Hearings

Under Army Act, it is not necessary to hold public trial. On February 25, 2015 further amendment was brought in the Army Act, which allows the judges to hold in camera and the identity of the persons involved in proceedings to be kept secret[128].

3.3.4 Location

Under the Army Act, an accused person can be tried anywhere, and no question will be entertained regarding the jurisdiction. To start with proceedings eleven military courts were established in Pakistan. [129]

3.3.5 Appeal

Person convicted through military courts whether capital punishment or imprisonment for life or imprisonment exceeding three months or whatever holds the right to appeal against the decision to a military appellate tribunal[130].

A military appellate tribunal is presided by an officer not below the rank of Brigadier.Any other officer, appointed by him, can also hear the appeals. The problematic thing is that the presiding officer is not required to have any legal education or training[131].

The law also provides that every appellate court hearing may be attended by a judge advocate from Judge Advocate General’s branch of Pakistan Army, in case, no such person is available then any person appointed by the Army Chief. The appellate tribunal has the power to reduce or enhance the punishment awarded by the military courts before[132].

The verdict of a military court that is upheld by a military appellant tribunal cannot be further appealed before any civil court, but only high court have the power to review the judgment[133].

In October 2018, the Peshawar High Court set aside the military courts judgements convicting more than seventy persons. The Court held that the trials were conducted on the basis of bad faith and the standards of fair trial provided in the Constitution and the international standard of fair trial were greatly compromised and ignored. The Court further stated that there was no standard evidence produced in the military courts on the basis of which accused could be convicted. The Court raised the concern that only one person was hired by all the accused person to represent them in the Court whereas private councils was also engaged by the families of the accused person[134]. Furthermore, the Court raised her concern regarding the question of evidence. It was shockingly surprise for the Court that all convictions were based upon the Confession of the accused persons. All confessional statements were in same handwriting and there was no contradiction found in tone and style of the writing. Many statements were written years after the arrest of the accused[135].

In 2016 a petitioned was filed by the convicts of the military courts before the Supreme Court. The conviction was challenged before the Court on the ground that the trial in military courts violated their fundamental right of fair trial. The right to fair trial was violated as the right to appoint counsel was denied, the right to be informed regarding the charges against them and the right to have a public trial were not granted in military courts. In some other cases, the matter of forced disappearance, inhumane treatment and torture was pointed out while in certain cases it was also alleged that the children under eighteen years of age were also tried and convicted by the military courts. In August 2018, the Supreme Court dismissed all the petitions and repeated its position once again that the military courts had jurisdiction to try the accused in all cases and the question of bad faith was irrelevant as no evidence supported this concern[136].

3.3.6 Evidence

The Army Act provides that the standard of evidence in Military Courts is the same as practiced and observed by regular military courts[137].

The amendments to the Army Act allow the federal government to transfer proceedings pending in any other criminal court, provided that the accused is being tried for the offences which could be tried by military courts. The military courts can also give the verdict based on the previously recorded statement[138].

3.3.7 Retrospective

The military courts, after amendment to Army Act 1952, also have the retrospective effect. Meaning thereby that they became competent to try persons for the conduct occurred before the amendment of 2015[139].

3.3.8 Incompetence of Military Courts

The basic issue with the military courts is that, military courts are presided by military officers who are a part of executive branch of the state and legal training is also not necessary for them. Moreover, their tenure is also not very much certain. Members of the JAG department may supervise the hearings, but they do not sit in the bench. The place of hearing and finality of punishments left in the hands of Military officers not judges. [140]

3.3.9 Absence of public hearing

Fairness requires that the trial must be a public trial, keeping in mind the exception in which good cause must exist for conducting in camera hearing. Also, the reason for conducting in camera hearing must be consistent with international standards[141].

3.3.10 Bar on Civil courts to entertain appeals

The Pakistan Army Act places a bar on civil courts to exercise their appellate jurisdiction over military courts’ decisions[142].

Civilian courts in Pakistan have held that writ jurisdiction may be invoked over cases decided by military courts, where “any action or order of any authority relating to the armed forces of Pakistan is either “coram non juice[143], mala fide[144],or without jurisdiction”. The Supreme Court also maintained in the petitions relating 21 ^st amendment that the power of judicial review is still with the Supreme Court over decisions of Military courts[145].

It should be kept in mind that under Pakistani law, the scope of judicial review is not very vast. Courts have also held that “the High Court in its Constitutional jurisdiction is not a court of appeal and hence not empowered to analyze each and every piece of evidence in order to return a verdict” and “controversial questions of facts…. cannot be looked into this limited extraordinary writ jurisdiction”[146].

As far as international standards are concerned, where military courts exist, their authority should be ruling in the first instance. Consequently, appeals should be brought before civilian courts[147].

3.3.11 Opaqueness of Judgment

A duly reasoned, written judgment including findings, evidence and legal reasoning is also an integral part of the fair trial. Even if the hearing is held in camera, the findings of court must be made public. Military courts usually do not produce detailed and reasoned judgements[148].

Although Supreme Court of Pakistan has directed the government of Pakistan to make necessary amendments in the Pakistan Army Act, but unfortunately the directions have not implemented so far[149].

3.4 Test of Military Justice

The capability of military justice system can be examined through a three-fold test. Military courts and their functioning are observed on the basis of equality before law, independence of tribunals/ courts and competence to try civilians. This assessment is based upon international law as well as domestic law of Pakistan.

3.4.1 International Human Rights Law

As far as International Human Rights are concerned, two most important instruments are UDHR and ICCPR. It is because both instruments are accepted by Pakistan. Also, Supreme Court of Pakistan also recognized the binding nature of UDHR.

The right to fair trial was recognized in the Article 10 of the UDHR which says that “everyone is entitled in full equality to a fair and public hearing by an independent tribunal……”Pakistan has acceded to ICCPR and it is the obligation of Pakistan to ensure all the rights to its citizens[150]. Article 14 of the Convention acknowledges the right to fair trial and also provide its constituent elements. These elements are right to fair and public hearing, equality before law and independence of tribunal or courts.

3.4.1.1 Equality before Law

Equality before law refers to the equal access and non-discriminatory treatment. It is further supplemented by equality of arms[151].

Access to administration of justice means that none should be deprived to claim justice and procedure should become a hurdle in his/her access to justice. It also manifests that no distinction should be made regarding access to courts, the trial must be conducted through regular courts not through the special courts.

Equality before courts also mean that similar cases are dealt with similar proceedings and no categorization is allowed under any circumstances. In Dudko v. Australia, the Human Rights Committee observed:

“When a defendant is not given an opportunity equal to that of the State party in the adjudication of a hearing bearing on the determination of a criminal charge, the principles of fairness and equality are engaged. It is for the State party to show that any procedural inequality was based on reasonable and objective grounds, not entailing actual disadvantage or other unfairness to the [defendant]” [152] .

Equality of arms ensures that the procedural rights are afforded to all parties indiscriminately and no distinction to be made except on the basis of law. Such distinction should also be justified on reasonable grounds and also in terms of objectives provided that no harm inflicted upon defendants.

3.4.1.2 Independence of Tribunal

Impartiality and independence of courts can be determined on two basis. First, the judges must remain out of influence of their personal biasness and they should refrain from drawing their own perceptions over dispute[153]. Second, there proceedings must be observed by an impartial and reasonable observer[154]’. ‘The right to be tried by an independent and impartial tribunal is universally recognized right. The ingredients to this very concept are qualification and appointment of judges, guarantee in terms of their tenure and most importantly the distinction from the executive organ of the State.

3.4.1.3 Trial of Civilians by Military Tribunals

Military courts can try civilians for military offences keeping view the Article 14 of ICCPR. The ICCPR does not prohibit the military courts to try civilians but it certainly lays down such conditions which are necessary to consider for the sake of fair trial. [155] It is the prime duty to take all necessary measures so that the conditions stipulated in Article 14 can be fulfilled. In Madani v Algeria, the Human Rights Committee held:

“The State party must demonstrate, with regard to the specific class of individuals at issue, that the regular civilian courts are unable to undertake the trials that other alternative forms of special or high-security civilian courts are inadequate to the task and that recourse to military courts is unavoidable. The State party must further demonstrate how military courts ensure the full protection of the rights of the accused pursuant to article 14” [156] .

3.4.2 International Humanitarian Law

The protection of right to fair trial and to secure the minimum judicial guarantees, during non-international armed conflict, has not attain the much attention as it should have. During non-international armed conflict, IHL and IHRL are applies simultaneously and both legal regimes are applied to complementary and to achieve the same goal[157].

In IHL, the most provision related to minimum judicial guarantees is the common article 3 of Geneva Conventions. The said article particularly talks about judicial guarantees during armed conflict of non-international character. Common Article 3 dose not talk specifically about what judicial guarantees are to be afforded to the accused. Other provision of Conventions further elaborates the judicial guarantees which are being afforded in Common Article 3. The provisions applied to armed conflicts, all provisions ensure that an accused must be presumed innocent, charges against him must be disclosed before him, he must be allowed to engage counsel of his own choice, his rights against self-incrimination remain available and he must be notified about the remedies available to him[158].

Following guarantees are afforded to the accused under the umbrella of Common Article 3 and these guarantees are mentioned in different provisions of the treaty.

· A fair and regular trial (GC IV Article 5)

· Safeguards of proper trial and defence, which shall not be less favourable than those provided under GC III Article 105, GC I Article 49, GC II Article 50

· Trial by regular courts AP I, Article 75

· The courts must afford fundamental guarantees to the accused Common Article 3

· A court offering the essential guarantees of independence and impartiality. AP II, Article 6

· Trial must be conducted by regular courts not special courts such as military courts GC IV, Article 66

· Competence of court GC IV, Article 71

Two important dimensions are to be considered here regarding the general scheme of fair trial. First dimension is related to mechanism of trial to ensure the right of fair trial and it contains the matter related to the court. It describes that the court must be a competent court, regularly constituted court and non-political military court. While the second dimension is related to the procedural requirement of fair trial, proper, regular, guarantees etc.[159].

3.4.2.1 Case Law

Hamdan v. Rumsfeld

In Hamdan v. Rumsfeld case, Hamdan was captured and detained by the US military in Guantanamo Bay. Hamdan filed a writ petition of Habeas Corpus in federal district court and he challenged his detention. Before the pronouncement of federal district court, he already been convicted by a military commission which held him as an enemy to the State. The basic question before the tribunal was whether the rights given Geneva Conventions can be enforced through court or not?[160].

The court held in its judgement that neither the executive nor the Congress can issue military tribunal of such sort. Moreover, the military commission had to comply with the ordinary law of the country. Also, Geneva Conventions being the ordinary law of war is applicable and it must be enforced by the court. As military commission violated both laws, Geneva Conventions and Uniform Code of Military justice, consequently, the trial held by military commission is void and illegal[161].

3.4.2.2 Customary International Humanitarian Law

In Customary International Humanitarian Law certain rules have been provided with reference to International Humanitarian Law which are not only customarily remain applied during armed conflicts but also supplement the humanitarian treaties. Rule 100 and 101 are of such worth that these must be discussed here.

I. Rule 100

“No one may be convicted or sentenced, except pursuant to a fair trial affording all essential judicial guarantees”.

The trial by an independent and impartial courts is always been of paramount importance in order to afford fair trial to the accused. Common Article III of the Geneva Conventions also speaks for this. The impartiality and independence can be achieved only when the trial must be conducted by regularly constituted courts. Third Geneva Convention says that the courts trying prisoners of war should be impartial and independent[162].

To ascertain the meaning of independence and impartiality, the case law can be referred. In order to examine the independence of court, it must be ensured that the judiciary performs the functions independently from all branches of the government. To further ensure the impartiality, the judges should never promote the interests of one side and should not have any perceptions in mind. Finally, all enough guarantees should be provided to remove doubts regarding the impartiality of court[163].

II. Rule 101

“No one may be accused or convicted of a criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time it was committed; nor may a heavier penalty be imposed than that which was applicable at the time the criminal offence was committed”.

The Geneva Conventions also provide that no retrospectivity should be allowed. Meaning thereby that no civilians and military personals will be tried for actions or omissions which were not considered as criminal prior to committing such acts. This principle further reaffirms in additional protocols that no heavy punishment shall be awarded but only such offense will be tried and only such punishment will be awarded which was provided by the law[164].

3.4.3 Pakistani Law

Since Pakistan is a dualist State and ICCPR cannot be applied directly in domestic judiciary of Pakistan but it can serve as a supplementary source to fill the vacuum in national laws[165]. Pakistan also acknowledge the right to fair trial, and it has been incorporated in the national law of Pakistan with all its elements. In 2010 the right to have fair trial was brought in the Constitution through Eighteenth amendment and Article 10A was made a distinct article in the Constitution. Article 10A states that:

“For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process”

[166] . In Memon[167], the Supreme Court said that:

“the right of access to justice is internationally well-recognized human right and is now being implemented and executed by granting relief under the Constitutional provisions. Article 10 of Universal Declaration of Human Rights and Article 14 of the United Nations Convention on Civil and Political Rights recognize the right of fair trial by an independent and impartial Tribunal established by law” .

3.4.3.1 Equality before courts

There is no separate provision in the Constitution which establishes the right to equality before courts but Article 4 and 9 refers to this very right as interpreted by the superior courts of the country. Article 4 states:

“To enjoy the protection of law and to be treated in accordance with the law is the inalienable right of every citizen”

Further Article 9 provides us that:

“ no person shall be deprived of life or liberty save in accordance with law”

The Supreme Court has used the phrase “in accordance with the law” quite openhandedly and has placed many ingredients of the right of fair trial in it[168]. On the other hand, the phrase “due process of law” refers to, that the notice of the proceedings will be given to the accused and he will be afforded reasonable time to defend himself. Also, the court before which he is being tried is impartial and holds no biasness against him. In Sarfraz, the Supreme Court called fair trial as an inalienable right[169]. Article 10(1) provides for elements falling under the “equality of arms” category, e.g. that an arrested person

“shall not be denied the right to consult and be defended by a legal practitioner of his choice”.

In case, an accused is unable to afford a lawyer then it is the duty of the State to afford him a lawyer and that lawyer must be given proper opportunity to defend his client. Article 25 of the Constitution provides the equality before law and equal protection of law. Similarly, the Code of Criminal Procedure also gives certain rights such supply of documents to accused and assistance of an interpreter. On discrimination, in Memon[170], the Supreme Court said:

“Although class legislation has been forbidden, it permits reasonable classification for the purpose of legislation. Permissible classification is allowed provided the classification is founded on intelligible differentia which distinguishes persons or things that are grouped together from others who are left out of the group and such classification and differentia must be on rational relation to the objects sought to be achieved by the Act. There should be a nexus between the classification and the objects of the Act. Independence and impartiality of tribunals ‘The independence of judiciary is one of the salient features of [… the Pakistani] Constitution. The preamble to the Constitution provides that … the independence of the judiciary shall be fully secured. The Objectives Resolution … also commands that independence of judiciary has to be fully secured”.

3.4.3.2 Independence of Judiciary

The higher judiciary have interpreted the terms “fully” and “secured” in a very broad sense to highlight the concept of Independence of Judiciary. In Pakistan, it is prerequisite for the judiciary to be independent and free from all sort of influences ranging from financial to administrative. Most importantly, it should maintain a reasonable distance from executive. In Faridi[171], the Supreme Court said that the independence of judiciary means:

“(a) that every Judge is free to decide matters before him in accordance with his assessment of the facts and his understanding of the law without improper influences, inducements or pressures, direct or indirect, from any quarter or for any reason; and

(b) that the judiciary is independent of the Executive and Legislature, and has jurisdiction, directly or by way of review, over all issues of a judicial nature”.

The procedure for the appointment of judges and security of their tenures are very closely linked with independence of judiciary[172]. The constitution provides for the “separation of judiciary from the executive ” [173] qualifications for the appointment of judges, procedure of appointment, service conditions, salary, and pension[174]. Another important factor in judicial system of Pakistan is the accountability of judges. The Constitution mentions the ground on which a judge can be removed and prescribes the procedure to be adopted for the removal of a judge. No other ground or procedure can be followed to remove a judge from his office except provided by the law.

3.5 Application of the tests

3.5.1 Independence of military courts

Military courts can never be assumed as independent as ordinary judiciary in the country is. As the armed forces come under the direct control of the Federal Government [175] and Federal Government can exercise its direct influence over the military courts. Similarly, judges appointed to preside the case are from executive branch and they have no link to Judge Advocate General branch and more importantly judge advocate has no link with Ministry of Law or Attorney General’s office. The Judge Advocate General has never been an independent officer in armed forces as he is appointed by the Defence Ministry [176] and he acts under the supervision of Army Chief [177] that is why to consider him as an independent personal is impossible.

3.5.2 Impartiality of military courts

As a matter of fact, judges advocate also come under the military chain of command that is why their impartiality always comes under doubt. Apparently, certain precautionary measures are provided in Army Rules [178] to ensure impartiality by disallowing certain individual to sit in court room such as convening officer, any officer who has conducted inquiry or investigation, commanding officer of the accused. But still it is not sufficient because no guarantees are offered to the other officers involved in military justice system in terms of their pay, promotion, transfer and suspension. Consequently, all officers involved in military justice system bound to follow military chain of command [179] .

3.5.3 Equality before the court

The Army Act and Army Rules mention several elements of equality before the court. The accused can have access to the court, to engage counsel out of his free will and to see the evidences produced against him/her etc. [180] but evidence suggests that there exists a huge gulf in what is being written and what is being manifested:

“A former military legal adviser … said the military sometimes prevented suspects from having lawyers, making convictions easier…. He said he knew of more than 100 cases where the military used the charges to bypass civilian courts and try a defendant suspected of a different crime”[181].

3.5.4 Trial of civilians by military courts

International law primarily emerges from the conventions and treaties, international community agreed upon and of course Pakistan also ratified many of those conventions and treaties. The Convention on Civil and Political Rights to which Pakistan is a party and it is thus necessary for Pakistan to comply with those directions provided by the convention. Article 14 of the said convention states “everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by the law”. The UN Human Rights Committee has made it crystal clear that notion of fair trial refers to all courts whether general, special or even military[182].

The UN Human Rights Committee has made clear that “the trial of civilians by military courts has raised serious problems as far as the equitable, impartial and independent administration of justice is concerned”. It has also repeatedly called on countries to prohibit the trials of civilians by military courts[183].

The Draft Principles Governing the Administration of Justice Through Military Tribunals, which were adopted by the former UN Sub commission on the promotion and protection of Human Rights 2006[184]. The Draft Principle, focuses on the military courts, has affirmed that the jurisdiction of the military courts should be confined to the military personnel in relation to the military offences. The principle also put stresses upon the right to fair trial including the right to appeal before civilian courts, and civilians, accused of any offence, shall be tried by civilian courts. The basic documents regarding the fundamental rights is the Universal Declaration of Human Rights, clearly mentions the right to equality, freedom from torture, right to equality before law and right to fair public hearing.

The 2003 case before the African Commission on Human Rights, Law Office of the Ghazi Suleiman v. Sudan, a case regarding the trial of a civilian before military Court. The commission stated:

“Civilians appearing before and being tried by the military courts presided over by active military officers who are still under military regulations violates the fundamental principles of fair trial.......... military courts should respect norms of a fair trial. They should in no case try civilians. Likewise, military courts should not deal with offences which are under purview of ordinary courts” [185] .

3.6 Breaches and Violations

The decision of military courts cannot be appealed before higher judiciary, only remedy available is to invoke the writ jurisdiction of higher judiciary[186]. However, the writ jurisdiction of the apex court can be invoked by the accused and the decisions of military courts can be challenged on the grounds of “Coram non judice, mala fide or without jurisdiction”[187]. By mid-2015, the military courts awarded six accused persons death sentence. Against these convictions, petitions were filed before the Supreme Court; the honorable Court initially suspended the execution, so the Constitutionality of the military courts can be decided first. After deciding the Constitutional legitimacy of the military courts, Supreme Court dismissed all petitions[188]. The petitions of 17 convicts who are sentenced to death were challenged before the Supreme Court by their Families on the ground of violation of their right to fair trial[189], however all these petitions were dismissed by the Supreme court in case in the case SAID ZAMAN KHAN and others v. FEDERATION OF PAKISTAN [190] though Secretary Ministry of Defence and others.

The violations mentioned in the said petitions were the denial of right to counsel of free will; failure of charges disclosure to the accused; failure to furnish copies of the decisions and the secrecy behind the trails as the location to conduct trail was not disclosed and number of occasion Pakistan Army Act Rules, 1954 were infringed in short no fair trail guarantees were provided[191]. The trials were also inconsistent with Article 4 of constitution and in this regard reference was made to Rule 23 and 24 as well as Rules 81 to 87 of the Pakistan Army Act Rules, 1954. Also, not enough time and opportunity was given to make preparations for the defence in terms of Rule 23 of the Pakistan Army Act Rules, 1954 and no pre-trial proceedings were conducted in violation of the Pakistan Army Act, 1952[192].

The learned counsels for the Petitioners had argued that the trials were conducted, after three years of the alleged occurrence, violated the bar contained in Section 91 of the Pakistan Army Act, 1952, hence, the said trials were ultra vires to their jurisdiction. Furthermore, it was argued that convicts were kept in the Internment centres subject to Actions (in aid of Civil Power) regulation,2011 which is sub judicebefore this Court for being and have violated the articles of constitution namely; 10 and 10A[193].

There were occasions where the petitioners contended that the convicts were severally tortured and were disappeared forcibly along with other ill-treatments[194].

3.7 Conclusion

After discussing the above, it has become clear that the military courts in Pakistan, proving fatal to human rights, free trial and compromised the judiciary’ independence. Since a proper mechanism was already there in the shape of the special law and courts, then the military courts were only deceptive in the name of speedy justice. The military courts were established as a short-term solution and it was intended to make reforms in the criminal justice system and sunset clause was also incorporated there. But the result is that nothing has been done effectively. The Criminal justice amendment Act failed to bring the desired reforms and results. At the same time, the duration of military courts got extended. In 2015, the amendments were made in Military Courts but practically the pattern of proceedings remained the same. The military courts were established in a chaotic atmosphere, after the attack on Army Public School in Peshawar, if not deceptive. It is necessary for Pakistan to understand that there is no overnight solution for the sedition which is present for so many years. Pakistan, being a state, cannot escape its international obligations and the principle of fair trial should never be compromised since it is not only the international obligation but also embedded in the Constitution of 1973. It is important to understand that one wrong can never be made right by committing another wrong. If terrorism carries with its atrocities and pain, then violating the right of trial also does the same.

Conclusion and Recommendations

Conclusion

Military courts were created to conclude speedy trials and provide speedy justice to the people. It was done through 21 ^st amendment and further complemented by the Supreme Court judgment. The establishment of such courts creates a chaotic scene in legal circles as it created a serious debate over the matter of fundamental rights, provided and guaranteed by the Constitution. Moreover, the questions were raised regarding the international conventions which Pakistan signed and ratified. Since Pakistan is going through NIAC, so Geneva Conventions, along with other Human Rights Conventions, become more applicable in the country. Being a high contracting party, it is the duty of Pakistan to ensure respect for the convention and apply these conventions in the country.

Prior to Military Courts, though the Ordinary Criminal Justice System of Pakistan was not very much effective, but still there was something which could be improved instead of going for Military Justice. Cr.P.C and PPC are the basic Acts of the criminal justice system where offences against armed force and the State are also incorporated. Furthermore, Anti-Terrorism Act and special courts to try terrorists and militants were also established in late 90s to try these culprits. So, a proper mechanism was there to try terrorists but unfortunately a short-term solution was adopted by the legislature and a compromise made by the judiciary. To provide a legal cover to Military Courts, the august Supreme Court went against her own decided principles and overrode many judgment of her own. The fundamental value of separation of power and trichotomy of power was infringed as judiciary allowed a parallel judicial system to run. Consequently, the executive started to perform judicial functions in the country having a complete judicial and legislative backing.

In today’s world, a state can be an independent and sovereign, but it cannot work and progress in isolation. Since the International Law is now becoming more institutionalized which is further complemented by codified laws, no state can escape her obligations before International community. Pakistan adopted and ratified many instruments related to human rights and humanitarian law. So, it is the duty of Pakistan to fulfill her international commitments and pledges. The Geneva Conventions of 1949 carry common article III to ensure judicial guarantees to the accused and on other hand human rights’ conventions such ICCPR also talk about fair trial, but both were compromised in military justice system. The parliament and judiciary not only compromised the fundamental rights but also failed to consider the international obligations of the State. Sunset clause was provided in the 21 ^st amendment and it was thought circumstances would be changed rather improved but in 2017 further extension was afforded to military courts. Beside all this, one cannot ignore the procedural flaws in proceedings in military courts such as secret hearing, transparency and location and timing of proceedings.

To conclude this thesis, it is pertinent to remember that the implied objective of the military courts was to eradicate terrorism, but terrorism and the ideology of terrorism is still very effective in the country. Although military courts had the constitutional cover and it can be supposed that the military courts were need of the hour, from state perspective, but a blank cheque can never be issued in the name of security. The executive and judiciary were amalgamated, fundamental rights were compromised, international obligations were ignored, justice delayed justice is denied was in mind while enacting military courts, but justice hurried is justice buried was applied. Sustainability can never be achieved through compromising the fundamental values and principle neither short-term solutions but for that long-term policies and steadfastness to cause of justice and principles is essential.

Recommendations

1. All the judgments passed by military courts should be published in the same manner as other digests and journals are published.
2. Pakistan make it sure that the international standards of fair trial should be adopted as provided in ICCPR.
3. Provide security to judges, lawyers and witnesses in cases related to terrorism.
4. Concrete steps and measures must be taken through involving all the stakeholders for bringing reforms in the crime justice system.
5. The Ordinary Criminal Justice System must be reformed so that, in future, short-term solutions can be avoided.
6. The rationale provided for establishing military courts must be countered in a way that judges and lawyers feel safe.

Bibliography

1. “8 United Nations Treaty Collection, ‘Status of Treaties’ (18 April 2017) <https://Treaties.Un.Org/Pages/ViewDetails.Aspx?Src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en> Accessed 18 April 2017.,” n.d. Accessed July 15, 2019.

2. “228/99 Law Offices of Ghazi Suleiman / Sudan / Decisions on Communications / ACHPR.” Accessed July 19, 2019. http://www.achpr.org/communications/decision/228.99/ .

3. “1333523681_951.Pdf.” Accessed July 19, 2019. http://na.gov.pk/uploads/documents/1333523681_951.pdf .

4. “A Record 120 Nations Adopt UN Death-Penalty Moratorium Resolution.” Death Penalty Information Center. Accessed July 20, 2019. https://deathpenaltyinfo.org/news/a-record-120-nations-adopt-un-death-penalty-moratorium-resolution .

5. “Abbassi v. Algeria, Comm. 1172/2003, U.N. Doc. A/62/40, Vol. II, at 105 (HRC 2007).” Accessed July 19, 2019. http://www.worldcourts.com/hrc/eng/decisions/2007.03.28_Abbassi_v_Algeria.htm .

6. “Achpr33_228_99_eng.Pdf.” Accessed July 19, 2019. http://www.achpr.org/files/sessions/33rd/comunications/228.99/achpr33_228_99_eng.pdf .

7. Akbar, Shahzad. “Comprehensive Review of NAP Special Courts.” Accessed October 2, 2017. , http://pakpips.com/downloads/pdf/ShAkbar-Mil-Courts.pdf .

8. “Aliboeva v. Tajikistan, Comm. 985/2001, U.N. Doc. A/61/40, Vol. II, at 51 (HRC 2005).” Accessed July 19, 2019. http://www.worldcourts.com/hrc/eng/decisions/2005.10.18_Aliboeva_v_Tajikistan.htm .

9. Asad, Malik. “The New Martial Powers.” DAWN.COM, January 7, 2015. http://www.dawn.com/news/1155411 .

10. Ashok, Kaveri, Arun Vishwanathan, S Chandrashekar, L V Krishnan, Lalitha Sundaresan, and Rajaram Nagappa. “Other Recent ISSSP Publications,” n.d., 8.

11. “Basic Structure & The 21st Constitutional Amendment.” Accessed July 22, 2019. http://courtingthelaw.com/2015/10/05/commentary/basic-structure-the-21st-constitutional-amendment/ .

12. “Basic Structure & The 21st Constitutional Amendment.” Accessed July 18, 2019. http://courtingthelaw.com/2015/10/05/commentary/basic-structure-the-21st-constitutional-amendment/ .

13. “Blunkett Plans Tougher Terror Law,” February 2, 2004. http://news.bbc.co.uk/2/hi/uk_news/politics/3450201.stm .

14. Canada, Supreme Court of. “Supreme Court of Canada - SCC Case Information - Docket - 22103,” January 1, 2001. https://www.scc-csc.ca/case-dossier/info/dock-regi-eng.aspx?cas=22103 .

15. Chandrashekar, S. “Military Courts in Pakistan: Will They Return? What Are the Implications?,” n.d., 8.

16. Constitution 1973, § 2A (n.d.).

17. “Cooper v United Kingdom, Admissibility and Merits, App No 48843/99, ECHR 2003.” Accessed July 19, 2019. https://opil.ouplaw.com/view/10.1093/law:ihrl/3099echr03.case.1/law-ihrl-3099echr03 .

18. Cross, International Committee of the Red. Commentary on the First Geneva Convention: Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field . Cambridge University Press, 2016.

19. “D. Suba Chandran, Military Courts in Pakistan International Strategic and Security Studies Programme, (ISSSP), NIAS., Http://Isssp.in/Wp-Content/Uploads/2017/02/1701-NSF12-DSubaChandran.Pdf, (Last Visited July 12th, 2019),” n.d.

20. “Download Space — #1 Public Domain & Copyright Free Content Collection.” Accessed July 19, 2019. https://download-space.com/?aff.id=8107 .

21. “Dudko v. Australia, Comm. 1347/2005, U.N. Doc. A/62/40, Vol. II, at 266 (HRC 2007).” Accessed July 18, 2019. http://www.worldcourts.com/hrc/eng/decisions/2007.07.23_Dudko_v_Australia.htm .

22. Ex Parte Milligan 71 U.S.2 (1866) (n.d.).

23. Ezequiel. “EJIL: Talk! – Joint Series on International Law and Armed Conflict: Fair Trial Guarantees in Armed Conflict.” Accessed July 19, 2019. https://www.ejiltalk.org/joint-series-on-international-law-and-armed-conflict-fair-trial-guarantees-in-armed-conflict/ .

24. Fayyaz, Shabana. “Responding to Terrorism: Pakistan’s Anti-Terrorism Laws.” POLITICAL VIOLENCE, n.d., 14.

25. ———. “Responding to Terrorism: Pakistan’s Anti-Terrorism Laws.” POLITICAL VIOLENCE , n.d., 14.

26. “Gonzalez Del Rio v. Peru, Comm. 263/1987, U.N. Doc. CCPR/C/40/D/263/1987 (HRC 1990).” Accessed July 19, 2019. http://www.worldcourts.com/hrc/eng/decisions/1990.11.06_Gonzalez_del_Rio_v_Peru.htm .

27. “Gonz�lez Del R�o v. Peru, Communication No. 263/1987, U.N. Doc. CCPR/C/46/D/263/1987 (1992).” Accessed July 19, 2019. http://hrlibrary.umn.edu/undocs/html/dec263.htm .

28. “Guantanamo Bay Naval Station Fast Facts - CNN.” Accessed July 19, 2019. https://edition.cnn.com/2013/09/09/world/Guantanamo-bay-naval-station-fast-facts/index.html .

29. “Hakimi, Monica - University of Michigan Law School.” Accessed July 19, 2019. https://www.law.umich.edu/FacultyBio/Pages/FacultyBio.aspx?FacID=mhakimi .

30. Hashmi, Asad. “Insight - Pakistan’s New Military Courts Challenged over Abuse Claims.” Reuters, June 27, 2016. https://uk.reuters.com/article/uk-pakistan-military-courts-insight-idUKKCN0ZD30R .

31. “Henckaerts et al. - 2005 - Customary International Humanitarian Law.Pdf.” Accessed July 20, 2019. https://www.icrc.org/en/doc/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf .

32. Henckaerts, Jean-Marie, Louise Doswald-Beck, Carolin Alvermann, and International Committee of the Red Cross, eds. Customary International Humanitarian Law . Cambridge ; New York: Cambridge University Press, 2005.

33. “House of Lords - Regina v Boyd Etc.” Accessed July 19, 2019. https://publications.parliament.uk/pa/ld200102/ldjudgmt/jd020718/boyd-1.htm .

34. “How Is the Term ‘Armed Conflict’ Defined in International Humanitarian Law?” Opinion paper. International Committee of the Red Cross (ICRC), March 2008. https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf .

35. “Http://Rsilpak.Org/Wp-Content/Uploads/2019/01/Legal-Implications-of-Adopting-a-Conflict-Paradigm-in-Pakistan.Pdf,” n.d.

36. “Https://Www.Diakonia.Se/En/IHL/The-Law/International-Law1/International-Human-Rights-Law/,” n.d.

37. “Https://Www.Icrc.Org/En/Doc/Assets/Files/Other/What_is_ihl.Pdf,” n.d.

38. “Human Rights Documents.” Accessed July 19, 2019. http://ap.ohchr.org/documents/alldocs.aspx?doc_id=12100 .

39. “ICC - Legal Tools Record: Case of Castillo Petruzzi et al. v. Peru Judgment Of [...].” Accessed July 19, 2019. https://www.legal-tools.org/en/doc/2fb77f/ .

40. “International Covenant on Civil and Political Rights (ICCPR), Article 2(2) (United Nations, 16 December 1966) <http://Www.Ohchr.Org/EN/ProfessionalInterest/Pages/CCPR.Aspx> Accessed 18 April 2017.,” n.d.

41. “International Human Rights Law - Diakonia.” Accessed July 18, 2019. https://www.diakonia.se/en/IHL/The-Law/International-Law1/International-Human-Rights-Law/ .

42. “International Standard: Principles Governing the Administration of Justice Through Military Tribunals | DCAF – Geneva Centre for Security Sector Governance.” Accessed July 20, 2019. https://www.dcaf.ch/international-standard-principles-governing-administration-justice-through-military-tribunals .

43. Iqbal, Nasir. “Asma Asks SC to Order Retrial in All Cases Heard by Military Courts.” DAWN.COM, June 21, 2016. http://www.dawn.com/news/1266242 .

44. “James Stuart-Smith & William Edward Stubbs, Military Law - Military Criminal Justice System, Jrank.Org, Http://Law.Jrank.Org/Pages/8564/Military-Law-Military-Criminal-Justice-System.Html (Last Visited September 12th, 2017),” n.d.

45. “Jo Morris &Fiona McAddy, The Jurisdiction of the Military Court Martial, Http://Www.Churchcourtchambers.Co.Uk/Legal-Articles/the-Jurisdiction-of-the-Military-Court-Martial-an-Article-by-Jo-Morris-and-Fiona-Mcaddy, (Last Visited Septmebr 06th, 2017),” n.d.

46. “Jo Morris &Fiona McAddy, The Jurisdiction of the Military Court Martial, Http://Www.Churchcourtchambers.Co.Uk/Legal-Articles/the-Jurisdiction-of-the-Military-Court-Martial-an-Article-by-Jo-Morris-and-Fiona-Mcaddy, (Last Visited Septmebr 06th, 2017),” n.d.

47. “Joint Series on International Law and Armed Conflict: Hakimi on Fair Trial Guarantees in Armed Conflict.” Lawfare, September 23, 2016. https://www.lawfareblog.com/joint-series-international-law-and-armed-conflict-hakimi-fair-trial-guarantees-armed-conflict .

48. Karim, Fazal. Access to Justice. Islamabad: Pakistan Law House, 2003.

49. “Karttunen v. Finland, Communication No. 387/1989, U.N. Doc. CCPR/C/46/D/387/1989 (1992).” Accessed July 19, 2019. http://hrlibrary.umn.edu/undocs/html/dec387.htm .

50. “Khalilova v. Tajikistan, Comm. 973/2001, U.N. Doc. A/60/40, Vol. II, at 74 (HRC 2005).” Accessed July 19, 2019. http://www.worldcourts.com/hrc/eng/decisions/2005.03.30_Khalilova_v_Tajikistan.htm .

51. “Legal-Implications-of-Adopting-a-Conflict-Paradigm-in-Pakistan.Pdf.” Accessed July 18, 2019. http://rsilpak.org/wp-content/uploads/2019/01/Legal-Implications-of-Adopting-a-Conflict-Paradigm-in-Pakistan.pdf .

52. “Militarised Justice,” December 4, 2015. https://www.thenews.com.pk/print/79676-militarised-justice .

53. “Military Injustice in Pakistan A Briefing Paper,” n.d.

54. “OHCHR | Annual Reports.” Accessed July 19, 2019. https://www.ohchr.org/EN/Issues/Migration/SRMigrants/Pages/AnnualReports.aspx .

55. “OHCHR | International Covenant on Civil and Political Rights.” Accessed July 19, 2019. https://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx .

56. “OHCHR | International Covenant on Civil and Political Rights.” Accessed July 18, 2019. https://www.ohchr.org/EN/ProfessionalInterest/Pages/CCPR.aspx .

57. “OHCHR | International Law.” Accessed July 21, 2019. https://www.ohchr.org/en/professionalinterest/pages/internationallaw.aspx .

58. Omer, Reema. “Crisis of Impunity.” DAWN.COM, January 31, 2017. http://www.dawn.com/news/1311707 .

59. ———. “Suspect Confessions.” DAWN.COM, November 13, 2016. http://www.dawn.com/news/1295973 .

60. “Opinion-Paper-Armed-Conflict.Pdf.” Accessed July 20, 2019. https://www.icrc.org/en/doc/assets/files/other/opinion-paper-armed-conflict.pdf .

61. “Pakistan: ‘Military Justice’ System an Affront to Human Rights – New Analysis Brief | International Commission of Jurists.” Accessed July 20, 2019. https://www.icj.org/pakistan-military-justice-system-an-affront-to-human-rights-new-analysis-brief/ .

62. “Pakistan: Supreme Court Decision Upholding 21st Amendment a Blow to Human Rights and Judicial Independence | International Commission of Jurists.” Accessed July 20, 2019. https://www.icj.org/pakistan-supreme-court-decision-upholding-21st-amendment-is-a-blow-to-human-rights-and-judicial-independence/ .

63. “Pakistan: Trials of Civilians before Military Tribunals a Subversion of Justice | International Commission of Jurists.” Accessed July 19, 2019. https://www.icj.org/pakistan-trials-of-civilians-before-military-tribunals-a-subversion-of-justice/ .

64. “Pakistanlawsite.” Accessed July 19, 2019. http://www.plsbeta.com/LawOnline/law/Citation.asp .

65. “Pakistan-Military-Courts-Advocacy-Analysis-Brief-2018-ENG.Pdf.” Accessed July 22, 2019. https://www.icj.org/wp-content/uploads/2019/01/Pakistan-military-courts-Advocacy-Analysis-brief-2018-ENG.pdf .

66. “Pakistan-Military-Courts-Advocacy-Analysis-Brief-2018-ENG.Pdf.” Accessed July 20, 2019. https://www.icj.org/wp-content/uploads/2019/01/Pakistan-military-courts-Advocacy-Analysis-brief-2018-ENG.pdf .

67. “Palamara Iribarne v. Chile.” Global Freedom of Expression. Accessed July 19, 2019. https://globalfreedomofexpression.columbia.edu/cases/palamara-iribarne-v-chile/ .

68. “Palamara Iribarne v. Chile.” Global Freedom of Expression. Accessed July 19, 2019. https://globalfreedomofexpression.columbia.edu/cases/palamara-iribarne-v-chile/ .

69. “Palamara Iribarne v. Chile | IACHR.” Accessed July 20, 2019. https://iachr.lls.edu/cases/palamara-iribarne-v-chile .

70. “Peter Lumley v. Jamaica, Communication No 662/1995, U.N. Doc. CCPR/C/65/D/662/1995 (30 April 1999).” Accessed July 19, 2019. http://hrlibrary.umn.edu/undocs/session65/view662.htm .

71. Raza, Syed Irfan. “Security for Military Court Judges and Prosecutors.” DAWN.COM, February 25, 2015. http://www.dawn.com/news/1165793 .

72. Refugees, United Nations High Commissioner for. “Refworld | CCPR General Comment No. 18: Non-Discrimination.” Refworld. Accessed July 20, 2019. https://www.refworld.org/docid/453883fa8.html .

73. ———. “Refworld | Findlay v. The United Kingdom.” Refworld. Accessed July 19, 2019. /cases,ECHR,3ae6b66d1c.html .

74. ———. “Refworld | General Comment No. 32, Article 14, Right to Equality before Courts and Tribunals and to Fair Trial.” Refworld. Accessed July 18, 2019. https://www.refworld.org/docid/478b2b2f2.html .

75. ———. “Refworld | UN Human Rights Committee: Concluding Observations of the Human Rights Committee, Slovakia.” Refworld. Accessed July 20, 2019. https://www.refworld.org/docid/3ae6b032c.html .

76. Reporter, The Newspaper’s Staff. “SC to Take up Appeals against Military Courts’ Verdicts.” DAWN.COM, February 25, 2016. http://www.dawn.com/news/1241804 .

77. Reuters. “All Eyes on SC as Judgment Imminent in Military Courts&#039; Abuse Claims.” DAWN.COM, June 28, 2016. http://www.dawn.com/news/1267785 .

78. “Rogerson v. Australia, Comm. 802/1998, U.N. Doc. A/57/40, Vol. II, at 150 (HRC 2002).” Accessed July 19, 2019. http://www.worldcourts.com/hrc/eng/decisions/2002.04.03_Rogerson_v_Australia.htm .

79. “Saidova v. Tajikistan, Comm. 964/2001, U.N. Doc. A/59/40, Vol. II, at 164 (HRC 2004).” Accessed July 19, 2019. http://www.worldcourts.com/hrc/eng/decisions/2004.07.08_Saidova_v_Tajikistan.htm .

80. Schneeweis, Justine. “Durand and Ugarte v. Peru” 36 (n.d.): 27.

81. Schutter, Olivier De. International Human Rights Law: Cases, Materials, Commentary . Cambridge University Press, 2014.

82. “Seriec_135_ing.Pdf.” Accessed July 19, 2019. http://www.corteidh.or.cr/docs/casos/articulos/seriec_135_ing.pdf .

83. Shah, Niaz A. “The Right to a Fair Trial and the Military Justice System in Pakistan.” Accessed July 18, 2019. https://hull-repository.worktribe.com/OutputFile/513430 .

84. Shah, Waseem Ahmad. “Focus on Inconsistencies in Army Act.” DAWN.COM, November 18, 2012. http://www.dawn.com/news/765116 .

85. “Snapshot.” Accessed July 19, 2019. https://www.dawn.com/news/765116/focus-on-inconsistencies-in-army-act/print .

86. “Snapshot.” Accessed July 20, 2019. https://www.dawn.com/news/1165793/security-for-military-%20court-judges-and-prosecutorshttp://www.dawn.com/news/765116/focus-on-inconsistencies-in-%20army-act .

87. “STEEL AND MORRIS v. THE UNITED KINGDOM.” Accessed July 19, 2019. https://hudoc.echr.coe.int/eng#{%22itemid%22:[%22001-68224%22]} .

88. Tribune.com.pk. “Top Court Stays Execution of Three Military Court Convicts.” The Express Tribune, May 10, 2016. https://tribune.com.pk/story/1100489/top-court-stays-execution-of-three-military-court-convicts/ .

89. ———. “Top Court Stays Execution of Three Military Court Convicts.” The Express Tribune, May 10, 2016. https://tribune.com.pk/story/1100489/top-court-stays-execution-of-three-military-court-convicts/ .

90. “United Nations Treaty Collection.” Accessed July 18, 2019. https://treaties.un.org/Pages/ViewDetails.aspx?src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en .

91. “United Nations Treaty Collection, ‘Status of Treaties’ (18 April 2017) <https://Treaties.Un.Org/Pages/ViewDetails.Aspx?Src=TREATY&mtdsg_no=IV-4&chapter=4&clang=_en> Accessed 18 April 2017,” n.d.

92. “Universal Declaration of Human Rights,” October 6, 2015. https://www.un.org/en/universal-declaration-human-rights/ .

93. Universal Declaration of Human Rights (n.d.).

94. “University of Minnesota Human Rights Library.” Accessed July 20, 2019. http://hrlibrary.umn.edu/africa/comcases/222-98.html .

95. “University of Minnesota Human Rights Library.” Accessed July 19, 2019. http://hrlibrary.umn.edu/africa/comcases/222-98.html .

96. “University of Minnesota Human Rights Library.” Accessed July 19, 2019. http://hrlibrary.umn.edu/undocs/1100-2002.html .

97. “Victor P. Domukovsky, Zaza Tsiklauri, Petre Gelbakhiani and Irakli Dokvadze v. Georgia, Communications N 623/1995, 624/1995, 626/1995, 627/1995, U.N. Doc. CCPR/C/62/D/623/1995, CCPR/C/62/D/624/1995, CCPR/C/62/D/626/1995, CCPR/C/62/D/627/1995 (29 May 1998).” Accessed July 19, 2019. http://hrlibrary.umn.edu/undocs/session62/2327.htm .

98. “What_is_ihl.Pdf.” Accessed July 18, 2019. https://www.icrc.org/en/doc/assets/files/other/what_is_ihl.pdf .

99. “WikiZero - Abu Ghraib Torture and Prisoner Abuse.” Accessed July 19, 2019. https://www.wikizero.com/en/Abu_Ghraib_torture_and_prisoner_abuse .

100. “Worries Grow as New Courts Hand Pakistan Army More Power.” Reuters, March 25, 2015. https://www.reuters.com/article/us-pakistan-military-courts-insight-idUSKBN0ML2PD20150325 .

101. “Worries Grow as New Courts Hand Pakistan Army More Power - Reuters.” Accessed July 19, 2019. https://www.reuters.com/article/us-pakistan-military-courts-insight-idUSKBN0ML2PD20150325 .

102. “You Searched for Military Case and Basic Structure Doctrine - Courting The Law.” Accessed July 18, 2019. http://courtingthelaw.com/search/military+case+and+basic+structure+doctrine/ .

103. Zahid, Farhan. “Comprehensive Review of NAP: Establishing a Counter Terrorism Force.” Journal of Conflict and Peace Studies Vol 7 (December 8, 2015): 83–90..com