Hotline Asia Urgent Appeals -- UA020220(4)

Action Requested || Sample Letter || Background
Please respond on or before 30 March 2002
Update

Summary

The Pakistan government has recently amended its Anti-terrorism Act of 1997, through the Amendment Ordinance 2002. By doing so, the government is empowered to appoint military officers to the panel of judges who try 'terrorist' offences. This will undermine the independence of the judiciary who are key guarantors of the protection of human rights.

Lawyers throughout the country have criticized this anti-terrorism ordinance as unconstitutional and have said that the courts established under the ordinance would be military courts in its intent and purpose. On 13 January, the Lahore High Court restrained the federal government from taking any step under the Amendment Ordinance, to induct Army Officers into the anti-terrorism courts.

On 15 February in Punjab province, over 33,000 lawyers boycotted the courts in protest against the promulgation of the Anti-terrorism Amendment Ordinance 2002. The Supreme Court and the Lahore high court gave the call for boycott to bar associations and various other district bar associations. The leaders of the associations, in a resolution, also urged lawyers throughout Pakistan not to appear before the anti-terrorism courts.

Please write polite letters to express your concern about the adverse effects of the Anti-terrorism Act and ask the authorities to:

1. Withdraw military officers from anti-terrorism courts;

2. Immediately repeal the Anti-terrorism Act 1997;

3. Ensure independence of the judiciary and improve law and order.

Sample Letter

Background

Under the Suppression of Terrorist Activities (Special Courts) Act 1975, special courts were set up in all the provinces of Pakistan to try suspects for loosely defined "terrorist offences." The provisions governing the Special Courts for Terrorist Activities (STA Courts) were flawed in a number of ways; two of the most serious defects were the curtailment of the presumption of innocence of defendants and the insufficient independence of its judges from the executive.

Following a Lahore High Court judgment in July 1996, which declared that the constitutionally secured separation of the judiciary from the executive was not observed in the setting up of STA Courts, these courts ceased to function in Punjab province. However by late 1996, some of these courts were reconstituted by placing them under the supervision of the provincial high court and appointing judges after due consultation with the chief justice of the high court. In Sindh province, STA courts were abolished in January 1997 by the interim government without replacement and pending cases were referred to regular courts.

The Anti-terrorism Act 1997:

The Pakistan Government adopted a new Anti-terrorism Act in August 1997 to urgently respond to the deteriorating law and order in the provinces of Punjab and Sindh.

According to human rights organisations, the Act gave the police a new license to violate human rights. It authorises the police and army to fire on anyone "committing, or believed to be about to commit, a 'terrorist' offence." It also provides them with powers to arrest suspects and to search premises without a warrant. According to Pakistani lawyers, placing the interpretation on what is justifiable use of lethal force entirely in the hands of law enforcement personnel is, in the Pakistan context, an incitement to the security forces to commit unlawful killings.

The Act removes many safeguards guaranteeing the fundamental rights of Pakistani citizens. Once it became law, individuals no longer have protection against arbitrary arrest, detention, and ill-treatment.

The Act also facilitates the possibility of unfair trials, a concern which has already been raised by judicial bodies in Pakistan. It re-establishes special courts for speedy trial where people charged with terrorist offences can be convicted and sentenced to death within seven days. The procedures of the Special Courts for Speedy Trial did not ensure a fair trial, and in some cases time limits were imposed on the length of hearings, denying prisoners the right to a full defence. The setting up of special courts whose procedures differ significantly from those of the regular courts, violates the internationally recognised right to be tried by ordinary courts or tribunals using established legal procedures.

In November 1998, summary military courts were set up to try, within three days, civilians suspected of specified serious offences. Several people were tried and convicted by these special courts. Before the Supreme Court of Pakistan declared these military courts unconstitutional in 1999 and ordered them disbanded, several persons had already been sentenced to death and two men executed.

The Amendment Ordinance 2002:

President Musharraf had indicated in his speech to the nation on 12 January 2002 that sectarian violence had undermined the writ of the government and needed to be brought to an end. He said that in the year 2001 alone, 400 people had been killed in Pakistan on account of "sectarianism and terrorism." Besides strengthening the law enforcement apparatus, the justice system needed to be strengthened and made more efficient to curb sectarian violence, he added.

The Amendment Ordinance 2002, which is another amendment to the Anti-terrorism Act 1997, came into force on 31 January 2002. It will remain in force until 30 November 2002, and may be extended.

This ordinance provides for new courts, where the panel of judges trying these courts will include one senior military officer nominated by the government, besides two civilian judicial officers, constituting a three-member bench headed by a civilian judge. The courts will sit in cantonments or jail premises to ensure the security of accused, witnesses and the judiciary. A senior officer said, "these are not military courts in the true sense, but these courts will comprise civil judges and military officers to speedily dispose of cases of all those involved in terrorism."

Trial by special tribunals including military staff contravenes Principle 5 of the United Nations Basic Principles on the Independence of the Judiciary, endorsed by the General Assembly in 1985. It states: "Everyone has the right to be tried by ordinary courts or tribunals using established legal procedures. Tribunals that do not use the duly established procedures of the legal process shall not be created to displace the jurisdiction belonging to the ordinary courts of judicial tribunals."

Sources:

• Amnesty International ASA 33/30/97 & ASA 33/004/2002

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