Counter-terrorism legislation in Egypt, Tunisia and Pakistan
The ICJ today delivered an oral statement on counter-terrorism legislation in these countries, in an interactive dialogue at the UN Human Rights Council with the the Special Rapporteur on the promotion and protection of human rights and fundamental freedoms while countering terrorism.
The text of the statement follows:
COUNTER-TERRORISM LEGISLATION IN EGYPT, TUNISIA AND PAKISTAN
10 March 2016
Mr President,
The International Commission of Jurists (ICJ) welcomes the attention given by Special Rapporteur Ben Emmerson, to defective counter-terrorism legislation that facilitates violations of human rights, as reflected for example by communications on Egypt, Tunisia and Pakistan in the Communications Report of Special Procedures (A/HRC/31/79).
Numerous counter terrorism laws promulgated or applied in these and other countries include overly broad or imprecise definitions of terrorism-related offences. These extend the laws’ reach beyond acts of a truly terrorist character. Such laws can be and are abused or misapplied to criminalize the legitimate and peaceful exercise of fundamental rights and freedoms.
Further, these laws provide sweeping immunities that contribute to pervasive impunity for unlawful killings by security forces.
These laws also facilitate violations of the right to liberty and fair trial rights and insufficiently safeguard against abuses in detention. In Tunisia a person can be held in police custody without being brought before a judge for up to 15 days. In Pakistan, suspects can be held in preventive detention without charge, and without being brought before a judge, for up to 90 days.
Egypt and Pakistan continue to use military courts to conduct unfair trials of civilians in terrorism cases, contrary to international standards. At least eight civilians sentenced to death in secretive trials by military courts in Pakistan have been hanged since January 2015. “Expedited” procedures in terrorism circuit courts in the Egyptian civilian system also give rise to fair trial concerns.
The ICJ invites the Special Rapporteur to comment on measures or mechanisms that states, inter-governmental organisations, and civil society can take to help ensure that states such as Tunisia, Egypt and Pakistan repeal or amend counter-terrorism legislation to bring it into line with their international human rights obligations and commitments.
Pakistan: ICJ denounces hangings following secret trials by military courts
The ICJ today denounced the execution of four individuals convicted for their involvement in terrorism in secret trials by military courts.
Four civilians, namely Maulvi Abdus Salam, Hazrat Ali, Mujeebur Rehman and Sabeel alias Yahya, were hanged in Kohat early morning today after being sentenced to death by military courts earlier this year.
In a press statement issued on 13 August, the media wing of the armed forces announced they were convicted for their involvement in “terrorist activities”, including harboring, funding and transporting “suicide bombers” who attacked the Army Public School in December last year.
According to the statement, they are all “active members” of the “Toheedwal Jihad Group”.
The ICJ considers that the executions are unlawful, in breach of Pakistani law and its international legal obligations.
“The failure of the government and military authorities to make public information about the time and place of their trials, the charges and evidence against them, as well as the judgments of military courts have confirmed fears of human rights groups and the legal community that military trials in Pakistan are secret, opaque and constitute a violation of the right to a fair trial,” said Sam Zarifi, ICJ’s Asia Director.
The ICJ emphasizes that under international standards, civilians may not be tried before military tribunal.
As highlighted by the ICJ in a briefing paper released in April, proceedings before Pakistani military courts fall well short of national and international standards requiring fair trials before independent and impartial courts: judges are part of the executive branch of the State and continue to be subjected to military command; the right to appeal to civilian courts is not available; the right to a public hearing is not guaranteed; and a duly reasoned, written judgment, including the essential findings, evidence and legal reasoning, is denied. In addition, the procedures of military courts, the selection of cases to be referred to them, the location and timing of trial, and detailed about the alleged offences are kept secret.
“The ICJ supports the pursuit of justice for all victims of terrorism in Pakistan, including the horrific attack on the Army Public School last year”, added Zarifi. “However, justice will not be done by subverting the foundational pillars of justice: the right to a fair trial and independence of the judiciary.”
The UN Human Rights Committee, the supervisory authority for the ICCPR, has emphasized that in trials leading to the imposition of the death penalty, “scrupulous respect of the guarantees of fair trial is particularly important” and “imposition of a sentence of death upon conclusion of a trial, in which the provisions of article 14 of the Covenant have not been respected, constitutes a violation of the right to life.”
Pakistan has hanged more than 300 people since it lifted a six-year moratorium on the death penalty in December 2014. Initially lifted only for terrorism-related offences, the Government resumed executions in all cases in March 2015. Less than ten per cent of the total executions relate to terrorism-related offences.
“These executions only fulfill a desire for retribution and add to the disturbing trend of hanging people in the name of fighting terrorism in Pakistan and the region,” said Zarifi. “The death penalty has not been shown to have any deterrent effect on crime or terrorism anywhere in the world.”
The ICJ opposes capital punishment in all cases without exception. The death penalty constitutes a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
In December 2014, the UN General Assembly adopted a resolution, for the fifth time since 2007, emphasizing that the use of the death penalty undermines human dignity and calling on those countries that maintain the death penalty to establish a moratorium on its use with a view towards its abolition.
Some 117 UN Member States, a wide majority, voted in favor of a worldwide moratorium on executions as a step towards abolition of the death penalty.
In line with the present international trend, the ICJ reiterates its call on Pakistan to impose an official moratorium on executions, with a view to abolishing the death penalty.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Adviser for Pakistan (London), t: +447889565691; email: reema.omer(a)icj.org
Additional Information
On 6 January 2015, less than a month after a terrorist attack on an army public school in Peshawar that killed nearly 150 people, most of them children, Parliament voted to amend the Constitution of Pakistan, 1973, and the Army Act, 1952, to allow military courts to try civilians for offences related to terrorism.
Since January 2015, 56 cases have been referred to military courts, out of which 31 have been decided. Military courts have found the accused persons guilty in all cases. 27 convicts have been given the death penalty and four have been sentenced to life imprisonment.
Around 20 cases are still pending before the various military courts.
Pakistan: Supreme Court decision upholding 21st Amendment a blow to human rights and judicial independence
The SC’s decision to uphold the possibility of trial before military courts of individuals accused of committing terrorism related offences and belonging to “any terrorist group or organization using the name of religion or a sect” is a blow to human rights and the rule of law, said the ICJ.
In a split decision on the validity of the 21st amendment to the country’s Constitution, delivered on Wednesday, nine judges of the Supreme Court held that the trial of suspected terrorists, including civilians, by military courts was within the constitutional framework of the country and met principles of criminal justice.
The judges also ruled that individuals who claim to, or are known to belong to “any terrorist group or organization using the name of religion or a sect” constituted a valid classification allowing for differential treatment under the constitution.
Six dissenting judges expressed the view that the 21st constitutional amendment was incompatible with the right to a fair trial and independence of the judiciary. Two judges did not give an opinion on the merits, but suggested that the Supreme Court did not have the jurisdiction to review constitutional amendments.
The 902-page judgment also responds to challenges to the 18th amendment to the Constitution, including the procedure for judicial appointments.
“This judgment squarely puts Pakistan at odds with its international obligations and weakens the Supreme Court’s hard won reputation as the last resort for protecting the rights of Pakistani people,” said Sam Zarifi, ICJ’s Asia Director. “The Court has missed an important opportunity to reverse the militarization of justice in progress under the guise of combatting terrorism and to reinforce independence of the judiciary in the country.”
The trial of civilians in military courts for terrorism-related offences is incompatible with international standards, which require that those accused of any criminal offence are guaranteed a fair trial by an independent, impartial and competent tribunal.
ICJ’s briefing paper, published in April, provides a detailed assessment of the incompatibility of military trials in Pakistan with its international law obligations.
The Supreme Court, however, did not engage with international standards of fair trial and independence of the judiciary.
At least eight judges of the Supreme Court were of the opinion that it is for the Federal Government alone to ensure that their conduct “does not offend against the Public International Law or any International Commitment made by the State”.
“It is very disappointing that the Supreme Court has abdicated its primary role in acting with the other branches of the State to implement its obligations under international law,” added Zarifi. “International law is clear -all organs of the State, including the judiciary, must respect international human rights commitments, which include the right to a fair trial. Indeed, it is a core judicial responsibility to state what the law provides, whether the source of the law is international or domestic.”
The majority judgment also goes against previous Supreme Court rulings on military courts. In the past, the Court had reasoned that military courts do not meet the requirements of independence and impartiality; the establishment of military courts for trial of civilians amounts to creating a “parallel judicial system”; and that impeding the right to a fair trial cannot be justified on the basis of the public emergency or the “doctrine of necessity.
Military courts in Pakistan also have the power to award death sentences. On 2 April 2015, military courts convicted seven people of undisclosed offences in secret trials.
Of them, six were sentenced to death and one was sentenced to life in prison. The Supreme Court’s judgment has cleared the way for their execution.
Contact
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Advisor for South Asia (Lahore), t: +923214968434; email: reema.omer(a)icj.org
Read also:
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Additional information
In a significant development, by a 13-4 majority the Supreme Court held it has jurisdiction to review constitutional amendments passed by Parliament on the touchstone of the “salient features” and the preamble of the Constitution. What those salient features are, however, was left unaddressed.
On 6 January 2015, less than a month after a terrorist attack on an army public school in Peshawar that killed nearly 150 people, most of them children, the Pakistani Parliament unanimously voted to amend the Constitution of Pakistan, 1973, and the Army Act, 1952, to allow military courts to try civilians for offences related to terrorism.
Military courts in Pakistan are not independent or impartial. Trials before military courts in Pakistan fall far short of national and international fair trial standards.
Pakistan has resumed executions since December 2014, in response to a spate of terrorist attacks in the country. At least 196 people on death row have already been executed. According to available data, only a small fraction – less than 10 pecent – of those executed were convicted of terrorist offences.
ICJ opposes capital punishment in all cases without exception. The death penalty constitutes a violation of the right to life and the right not to be subjected to cruel, inhuman or degrading punishment.
Pakistan: drop criminal charges against peaceful protesters
The ICJ is urging the Pakistani Government to immediately release, and drop all charges against, dozens of people arrested on 26 and 30 July in the context of a peaceful protest against forced evictions in Islamabad.
“This is yet another illustration of the Government using Pakistan’s counter-terrorism laws against peaceful protesters to clamp down on dissent,” said Sam Zarifi, ICJ’s Director for Asia and the Pacific.
“Peaceful protest is not an act of terrorism but a fundamental human right recognized by the Constitution as well as international human rights treaties that Pakistan is a party to,” he added.
The protest, forcibly dispersed by the police, was organized against the demolition of houses and the forceful eviction of over 8000 people residing in a slum in the city.
The Government alleges the slum is illegal and all residents are encroachers; the inhabitants claim that under Pakistani law, all informal settlements must either be formalized or the inhabitants must be provided alternate housing.
At least 66 individuals arrested were booked under Section 7 of the Anti-Terrorism Act, 1997 (ATA) for “obstructing the authorities”, “demonstrating force with a view to terrorizing citizens” and “creating mischief”.
Following a court order, they have been placed in police remand (custody of the police) for interrogation, where they may be at imminent risk of torture and other ill-treatment.
An anti-terrorism court released four of the detainees today. The rest, however, remain in police custody, and according to reports received by ICJ, many of them are being denied access to families and friends.
“The risk of abuse is inherent in the Anti-Terrorism Act, which defines terrorism in vague and overbroad terms. The Government must urgently amend the ATA to ensure it meets the internationally recognized tests of necessity, legality and proportionality,” Zarifi said.
Pakistan has a long history of using the ATA against political activists and human rights defenders.
In 2014, a dozen political activists, including Baba Jan, a prominent human rights defender from Hunza, were sentenced to life imprisonment by an anti-terrorism court for protesting against the government’s failure to assist victims of a landslide.
Before that, six power loom workers from Faisalabad were arrested in the context of a protest demanding minimum wage. In 2011, they were sentenced to 81 years in prison each under the ATA.
The International Covenant on Economic, Social and Cultural Rights, which Pakistan ratified in 2008, obligates States to recognize the right to an adequate standard of living, which includes housing.
The Human Rights Commission of Pakistan too has reminded the Government of its duty to provide shelter to the people of Pakistan and make arrangements to provide alternate housing to inhabitants of informal settlements.
“Forcibly evicting people from their homes without providing them any alternate housing can in itself be a human rights violation. Arresting peaceful protesters and denying their right to a fair trial even further adds to the culpability of the authorities,” Zarifi added.
Contact:
Sam Zarifi, ICJ Asia Pacific Regional Director (Bangkok), t: +66 807819002; email: sam.zarifi(a)icj.org
Reema Omer, ICJ International Legal Advisor, South Asia (London), t: +447889565691; email: reema.omer(a)icj.org
Additional Information:
Under Article 11(1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR), which Pakistan ratified in 2008, States Parties recognize the right of everyone to an adequate standard of living, including adequate food, clothing and housing, and to the continuous improvement of living conditions.
States Parties are to take appropriate steps to ensure the realization of this right, recognizing to this effect the essential importance of international co-operation based on free consent.
The right to peaceful assembly is guaranteed under international human rights law, including Article 21 of the International Covenant on Civil and Political Rights (ICCPR), which Pakistan ratified in 2010 and is legally obligated to implement.
The UN Declaration on Human Rights Defenders also reiterates that everyone has the right to participate in peaceful activities against violations of human rights and fundamental freedoms, and obligates the State to take necessary measures to ensure the protection by the competent authorities of peaceful protestors against “any violence, threats, retaliation, de facto or de jure adverse discrimination, pressure or any other arbitrary action as a consequence of his or her legitimate exercise of the rights”.
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