Pakistan – UPR Submission by ADPAN and 15 CSOs

 PAKISTAN: The Death Penalty

 For the United Nations Universal Periodic Review of Pakistan [6-17 November 2017]

Submitted by ADPAN (Anti-Death Penalty Asia Network) and

15 Civil Society Organisations(CSOs) listed below

After 8 years of moratorium on execution, in the wake of Peshawar massacre of 2014, when more than 150 people (there was no official figure available as many injured succumbed to injuries later) mostly school pupils were martyred and many others were seriously injured, the government of Pakistan decided to lift the moratorium on death penalty in terrorism related cases, however later it has silently lifted the moratorium for all capital cases.

About 471 prisoners have been said to be executed since Pakistan had lifted moratorium.

In 2016, only about 7 out of the 87 executed were for terrorism offences.  Thus, only 8% of persons executed for terrorism offences, the very reason given by Pakistan to end the moratorium on executions 8 years ago.(see Human Rights Commission of Pakistan website at http://hrcp-web.org/hrcpweb/wp-content/uploads/2016/12/Final-Executions-2016.xlsx-9.pdf )

As of December 2017 more than 8000 are languishing on death row in Pakistan, as suggested by various reports, as there is no official data available.

 

UNFAIR TRIALS – Military Courts and the 21st & 23rd Constitutional Amendment

Pakistan created special military courts to try persons, including civilians, alleged to have committed terrorism offences but these courts fall short of fair trial standards. There is not even no right to appeal from the decisions of these courts.

The special military courts, to try alleged terrorism related offenders, were set up in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment. (http://www.na.gov.pk/uploads/documents/1449574923_658.pdf) This special legislation had a sunset clause by the virtue of which it would expire on Jan 7, 2017 and the military courts would cease to exist. But through Twenty third amendment Act of 2017, military courts have been revived for further two years period up to January 2019. (http://www.na.gov.pk/uploads/documents/1491460727_515.pdf)

The military courts began trials in February 2015 and during the period from January 2015 to January 2017, had convicted 274 hardcore militants of which 161 were sentenced to death whereas 113 others were awarded prison terms, mostly life imprisonment. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2017/1/8

Human Rights groups in Pakistan have time and again voiced serious concerns over the procedure adopted by the military courts.

Reports state that most of the relatives of the persons arrested, detained and convicted by these military courts, only came to know about the conviction of their dear and near ones through media when the Inter Services Public Relations made public the convictions and sentence through issuance of press releases. In several of the cases people had complained that their convicted relatives were believed to be “missing persons” when in fact they had been in detention for many years before their trial and subsequent convictions.

Military court trials, in pursuant to the constitutional amendments, fall far short of international fair trial standards and also to the guarantees enshrined in the Constitution of Pakistan (especially right to life, right to fair trial and right to have counsel of one’s own choice, Article 9, 10 and 10 (a)).

Further, in most of the cases it has been alleged that the accused confessed his crime which itself questions the justice of the whole arrest, detention, prosecution and the trial before such military courts.(ISPR press release of May 12, July 14, October 13, November 7,22, December 16, 28, 2016. https://www.ispr.gov.pk/front/main.asp?o=t-press_release&cat=army&date=2016/12/28

High number of confessions raised serious questions about the interrogation methods employed, and suggest the possibility of even torture and threats.

Non availability of oversight of Superior Courts is another point of concern as decisions of military courts are only permissible to limited judicial review, that is only with regard the question of lack of jurisdiction, coram non judice or mala fides.

It must be noted in that a, sentence of death awarded in the formal justice system of Pakistan by any session court is subject to confirmation by a two member bench of the High Court but this necessary protection against miscarriage of justice is not available to persons charged and tried by these military courts.

Though, Pakistan Army amendment Act, 2017, provides some protection like, ground of arrest within 24 hours of arrest, right to engage counsel of one’s own choice, application of Qanoon e Shahadat Order 1984 (Law of Evidence, 1984) but still since there is no right of comprehensive judicial review or even right of appeal to higher courts, the right or ability to challenge the deprivation of such rights and protections provided for in the Army Act, is easily denied.

Military Courts have also tried and convicted juveniles. One example is the case of Haider Ali.

Haider Ali, was convicted by military court but his mother challenged the conviction on the grounds that when Haider Ali was taken in to custody by military agencies, he was grade 10 student(about 15 years old), and that the military courts have no jurisdiction to try a juvenile. Unfortunately, both the High Court and the Supreme Court agreed with the prosecution that that the amendments to the Army Act superseded all other laws,(section 4, Pakistan Army Amendment Act 2017) and military courts could legally try individuals suspected of committing terrorism-related offences, even if they were under the age of 18 at the time of offence. http://www.supremecourt.gov.pk/web/user_files/File/C.P._842_2016.pdf ;http://www.na.gov.pk/uploads/documents/1491460313_135.pdf

Reforms in the legal framework:

Though Pakistan has ratified ICCPR, UNCAT UNCRC that required the State Parties to limit the death penalty only to the most serious offences, to not resort to torture, and to ensure special protection for children but the Pakistan, military courts are dispensing “justice”, and even trying civilians and children in contravention to Pakistan’s commitment to these UN Conventions and/or Treaties..

The only source of information of those who arrested, detained, tried and convicted by military courts is a media statement of the Inter Service Public Relation (ISPR) after sentence has been meted out, with no other necessary details.

Death penalty through the military courts for those committing acts of terrorism has failed to deter such crimes. The series of attacks since the end of the moratorium and the imposition of the death penalty is sufficient proof of this.

There were only 2 crimes carrying death penalty in 1947 when Pakistan came in to being but now there are altogether 27 offences that carry death penalty in Pakistan.  Further, Death penalty in Pakistan is not reserved to the most serious crimes but also now includes ordinary offences like kidnapping and drug offences.

RECOMMENDATIONS:

  1. Abolish Military Courts System. Pakistan should try all persons, including those accused of committing terrorist linked offences in the normal criminal courts. Repeal the twenty third constitutional amendments and all subsequent amendments in the Army Act that allow military courts to try civilians, that undermine legal safeguards that ensure fair trial.

 

  1. Until the military courts system is abolished, and the 23rd Constitutional amendment is repealed, there must be:-

a. Immediate access to lawyers and family members of persons arrested and detained for alleged terrorist acts

b.The right to a fair and open trial, with the right to appeal;

c. Immediate public disclosure of persons arrested, detained and being tried

d. The transfer of all cases pending or before the military court involving civilians should be transferred and tried before the ordinary criminal courts;

e. That all those persons convicted and sentenced to death by military courts shall not be executed, until and unless the conviction and sentenced have been reviewed and confirmed by a 2 member bench of the High Court, as is the requirement for cases where persons are sentenced to death in the normal courts in Pakistan;

f. That juveniles and/or children shall not be tried in military courts, and should never be sentenced to death.

g. Make public the exact number of death row prisoners along with case details of all those who have been tried and convicted by military courts since the introduction of 21st constitutional amendment.

 

General Recommendations:

  1. Being a party to the International Covenant on The Civil And Political Rights (ICCPR), Pakistan should immediately impose moratorium on death penalty as a first step towards abolition, restrict the number of offences carrying death penalty to the most serious crime only, as reflected in Article 6 of the ICCPR.

Dated: 7 November 2017

Submitted by:-

Anti-Death Penalty Asia Network(ADPAN)

Democratic Commission for Human Development, Pakistan

MADPET (Malaysians Against Death Penalty and Torture)

Legal Awareness Watch (LAW), Pakistan

Odhikar, Bangladesh

Christian Development Alternative (CDA), Bangladesh

South Asia Partnership- Pakistan

Youth for Democracy and Development

Malaysian Physicians for Social Responsibility

Australians Against Capital Punishment(AACP)

Women in Struggle for Empowerment, Pakistan (WISE)

Centre for Human Rights Education- Pakistan

National Commission for Justice and Peace, Pakistan

NGO’s Development Society- NDS Sindh

PIRBHAT Women’s Development Society Sindh

Saeeda Diep Institute For Peace And Secular Studies

ADPAN – Pakistan:- NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

ADPAN

Media Statement – 22/9/2017

NO EXECUTIONS BASED ON MILITARY COURT’S DECISION WITHOUT BEING ACCORDED THE RIGHT TO APPEAL

Abolish the Death Penalty, And  Re-Introduce the Moratorium on Execution Pending Abolition

ADPAN is appalled reports that another 4 persons, tried by Pakistan’s military courts, may be executed soon after their death sentence was confirmed by the Chief of Army. This Military Court, which came into being in January 2015, for the purpose of speedily trying persons accused of committing terrorist offences, falls short of international fair trial standards and requirements, including the denial of the right to appeal.

Decisions of these military courts, unlike normal criminal courts in Pakistan, are not subject to appeals to the High Court and/or the Supreme Court.

This denial of the right to appeal means appellate courts will not have the  opportunity of  analysing  the  evidence  produced  before  the military court  or  dwelling  into the “merits” of the case.  This reasonably will increase the possibility of miscarriage of justice, and hence the likelihood of a person not deserving the death penalty (or even an innocent person) to be wrongfully deprived of his/her life.

The Chief of Army Staff General Qamar Javed Bajwa confirmed on Wednesday(20/9/2017)  the death sentences awarded to four alleged ‘ terrorists’. This ‘confirmation’ is really an execution order, and this four persons could thereafter be executed at any time. (Geo News, 20/9/2017; Sify.com 20/9/2017; Dawn 20/9/2017; Pakistan News Service – PakTribune 21/9/2017 ).

Shabbir Ahmed,  Umara Khan,  Tahir Ali and Aftabud Din, according to a government statement, vide the Inter Services Public Relations, stated that these 4 persons  were ‘involved in killing of 21 persons and injuring another person’ and also that ‘…arms and explosives were also recovered from their possession…’. It also stated that they were tried by military courts that then sentenced them to death.

Earlier this month, on 8/9/2017, it was also reported that Army Chief General Qamar Javed Bajwa  had confirmed the death sentence of four other persons, being Raiz Ahmed, Hafeez ur Rehman, Muhammad Saleem and Kifayatullah. (Daily Pakistan, 8/9/2017). These persons were said to have caused the death of 16 persons, and that arms were recovered in their possession. It was also disclosed that 23 others were also awarded imprisonment of various durations by the military courts.

Pakistan had a moratorium on executions for about 8 years, until the end of 2014, when it was lifted for terrorist linked offences, and thereafter for other capital offences. Since then, about 471 persons have been executed for various crimes.

After the December 2014 terrorist attack at the Army Public School in Peshawar, the Pakistan government set up this military court for speedy trial of detained terrorists. The military courts (Field General Court Martial – FGCM) came into being in January 2015, by virtue of Pakistan Army (Amendment) Act, 2015 commonly known as the 21st Constitution Amendment.  This legislation had a sunset clause, and would have expired on Jan 7, 2017.

However, in March 2017, President Mamnoon Hussain signed the 23rd Amendment Bill 2017, which has now become an Act of Parliament, that had the effect of extending duration of the military courts for another two years, starting from January 7, 2017.

Article 10 of the UN Declaration of Human Rights stipulates that, ‘Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.’ The trying and sentencing of a person/s allegedly committing a certain kind of offence before a special ‘court’, different from the  court having the jurisdiction to try criminal cases in Pakistan may also be considered discriminatory,

Article 14(5) of the International Covenant on Civil and Political Rights, which Pakistan ratified in 2010, states   clearly that, ‘ Everyone convicted of a crime shall have the right to his conviction and sentence being reviewed by a higher tribunal according to law.’

The current unavailability of the right of appeal to higher courts on convictions and/or sentences of these military courts is clearly is a violation of the International Covenant on Civil and Political Rights, and a denial of the right to a fair trial.

ADPAN calls on Pakistan not to proceed with the executions of persons convicted and sentenced to death by the military courts, until they have been accorded the right to a fair trial including the right to have the conviction and sentence reviewed by a higher tribunal, which would reasonably be the High Court and thereafter the Supreme Court of Pakistan;

ADPAN calls for the repeal of the Constitution Amendment/s and the law that created these military courts;

ADPAN calls for all persons charged with a crime in Pakistan be tried by the already existing criminal courts of Pakistan, and shall be accorded a fair and public hearing by an independent and impartial tribunal;

ADPAN calls on Pakistan to immediately re-impose a moratorium on execution, pending abolition of the death penalty.

 

Charles Hector
For and on behalf of ADPAN (Anti Death Penalty Asia Network)

Pakistan – 4 more persons death sentence by Military Court confirmed by Army Chief

On 20/9/2017, the death sentence of Pakistan's military court of 4 persons was confirmed. On about 8/9/2017, the death sentence of 4 others were also confirmed. The Military Court, that now tries civilians for alleged terrorist linked offences, came into being in 2015  - Below are some news report, plus also a news article entitled, 'Here's All You Should Know About Pakistan's Military Court

COAS confirms death sentence of four terrorists tried by military courts

Armed forces personnel transport militants in Lower Dir. Photo: File

Chief of Army Staff General Qamar Javed Bajwa confirmed on Wednesday the death sentences awarded to four “hardcore” terrorists involved in heinous offences related to terrorism, according to the army’s media wing.

The Inter Services Public Relations said in a statement that the suspects are accused of abducting/slaughtering of soldiers and attacking law enforcement agencies and armed forces personnel.

“On the whole, they were involved in killing of 21 persons and injuring another person. Arms and explosives were also recovered from their possession. These convicts were tried by military courts. They were awarded death sentence,” the statement reads.

Army chief approves death sentence for four terrorists

The army shared the following details of the accused:

1. Shabbir Ahmed, son of Muhammad Shafique. The convict was a member of a proscribed organisation involved in attacking armed forces personnel, which resulted in the death of Major Adnan and 10 soldiers. He was also involved in the kidnapping and slaughtering of four soldiers.

2. Umara Khan, son of Ahmed Khan. The convict was a member of a proscribed organisation and was involved in attacking armed forces personnel which resulted in the death of three soldiers. He was also involved in the destruction of Government Girls Primary School, Hazara. He was found in possession of firearms and explosives.

3. Tahir Ali, son of Syed Nabi. The convict was a member of a proscribed organisation and involved in attacking armed forces personnel, which resulted in the death of two soldiers.

COAS confirms death sentences of 30 hardcore terrorists: ISPR

4. Aftabud Din, son of Farrukh Zada. The convict was a member of a proscribed organisation and involved in attacking law enforcement agency personnel, which resulted in the death of a police official and injuries to another. He was found in possession of firearms and explosives.

All the convicts admitted their offence before the magistrate and the trial court, after which they were awarded the death sentence, said the army.

Earlier in March, President Mamnoon Hussain signed the 28th Amendment Bill 2017 extending military courts for another two years.

The bill, following the president’s signature, is now an Act of Parliament. Under this Act, the duration of the military courts has been extended for another two years, starting from January 7, 2017. – Geo News, 20/9/2017

 

Pakistan army chief confirms death sentences to 4 “hardcore terrorists”

Source: Xinhua| 2017-09-20 21:38:57|Editor: Zhou Xin

ISLAMABAD, Sept. 20 (Xinhua) — Pakistan’s army chief General Qamar Javed Bajwa on Wednesday confirmed death sentences to four “hardcore terrorists” who were awarded the capital punishment by military courts for committing offences related to terrorism, said the military media wing.

“The chief of Army staff confirmed death sentences awarded to four hardcore terrorists, who were involved in heinous offences related to terrorism, including abducting and slaughtering of soldiers, destruction of government girls school, attacking law enforcement agencies and armed forces of Pakistan,” a statement from the Inter-Services Public Relations said.

“On the whole they were involved in killing of 21 persons and injuring another person,” the statement said, adding that fire-arms and explosives were also recovered from their possession.

All of them were members of a proscribed organization based in Pakistan and were arrested from different areas across the country.

All of the convicts had admitted their offences before the magistrates and the trial courts, according to a statement.

The army courts were set up after the terrorist attack on an army school in the country’s northwest city of Peshawar in December 2014 for the speedy trial of the terrorism-related accused.

According to the legal experts, the convicts have the right of appeal to the president under the law. However, the president has previously rejected all the mercy petitions in terrorism-related cases. – Xinzua, 20/9/2017

Chief of Army Staff (COAS) Gen Qamar Javed Bajwa on Friday confirmed the death sentences of four terrorists involved in killings of 16 individuals and injuring 8 others, said an Inter-Services Public Relations (ISPR) press release.

The terrorists were involved in killings of innocent civilians, attacking law enforcement agencies (LEAs) and armed forces, army’s media wing said.

23 others have been awarded imprisonments “of various duration” by the military courts, according to the statement.

A Corps Commanders’ Conference in General Headquarters (GHQ), chaired by Gen Bajwa, “discussed internal and external security situation of the country and progress of operation Raddul Fasaad,” another ISPR press release said.

Details of the convicts provided by ISPR:

Raiz Ahmed s/o Ghularam Khan

The convict was member of a banned organisation. He was involved in attacking LEAs and armed forces which resulted in death of eight police and frontier constabulary officials, and injuries of five police officials. He was also involved in destruction of the Government Middle School, Aligrama. A firearm was found in his possession. Ahmed admitted his offences before a magistrate and the trial court. He was awarded death sentence.

Hafeez ur Rehman s/o Habib ur Rehman

The convict was a member of a banned organisation and was involved in killing of three civilians. He admitted his offences before a magistrate and the trial court. He was awarded death sentence.

Muhammad Saleem s/o Muslim Khan

The convict was member of a banned organisation. He was involved in attacks on LEAs and armed forces which resulted in death of four soldiers and injured another. A firearm was found in his possession. Saleem admitted his offences before a magistrate and the trial court and was awarded death sentence.

Kifayat Ullah s/o Dilresh

The convict was member of a banned organisation and involved in attack on armed forces which resulted in death of a soldier and injured 2 others. A firearm was found in his possession.He admitted his offences before a magistrate and the trial court and was awarded death sentence.


Pakistan had legalised military court trials of terror suspects for a period of two years in January 2015, soon after terrorists killed 144 people, mostly children, at an Army Public School (APS) in Peshawar. Military courts had been disbanded owing to a sunset clause on January 7 but resumed operations after Pakistan Army Act 2017 and the 28th Constitutional Amendment Bill came into force late March. – Dawn, 8/9/2017

Here’s All You Should Know About Pakistan’s Military Court That Gave Kulbhushan Jadhav Death Sentence

Maninder Dabas

May 24, 2017

479 SHARES

Pakistan’s infamous military courts are often called ‘Kangaroo Courts’ by the critics all over the world as they are known to sentence people without relevent evidence in the cases that are primarily aimed at vengeance against the rivals of the military establishment.

With former Inter-Service Intelligence (ISI) official Lieutenant General (retd) Amjad Shoaib admitting that Pakistan abducted Kulbhushan Jadhav from Iran, Pakistan’s claims of Jadhav being arrested on Pakistan’s soil have got punctured once again.

Now India can further use his admission to sabotage Pakistan’s bundle of lies and expose how the military courts in Pakistan are dictating terms and taking decisions on people’s lives as per their whims and fancies.

Pakistan is the only country in South Asia where military courts trial the civilians behind closed doors despite it being against the country’s constitution. It’s no more a clandestine fact that military is the de facto government in Pakistan and the civilian government, judiciary and all other institutions aren’t even the rubber stamps.

Here is all you should know about military courts in Pakistan

Military courts don’t share any evidence against the accused and their four-star generals play demigods and sentence people punishment as per their fancies and Kulbhushan Jadhav’s case of no different.

Military Courts have a history, but lately, they came into being after Peshawar school attack

The terrorist attack on an army school in Peshawar on December 16, 2014, in which 140 people mostly school children had died paved way for the revival of military courts.

On January 6, 2015, Pakistan’s Parliament unanimously passed the 21st amendment of the Constitution which legalised special military court trials for hardcore terrorists which also included suspected civilians. The courts were revived for two years and in these two years the military courts had awarded death sentence to 161 militants and roughly 21 have been executed.

AP

In January 2017, the trial period of military courts had expired, but in March Pakistan parliament once again extended their period for two more years.