Aug 7, 2015 | News
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:
ICJ denounces law permitting military trials of civilians
Trials of civilians before military tribunals a subversion of justice
HRCP, ICJ demand clarification on juveniles’ trial by military courts
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.
Mar 12, 2015 | News
Pakistan’s decision to fully reinstate the death penalty puts at imminent risk of execution more than 500 people on death row who have exhausted all avenues of appeal, with another 8000 facing death penalties, said the ICJ today.
“The total abandonment of the moratorium on the death penalty is a disaster for human rights in Pakistan,” said Sam Zarifi, ICJ’s Asia director. “We fear a major acceleration in the flow of executions we have seen over the past few months—none of which do anything to protect the rights of the Pakistani people.”
25 people have been executed since 16 December 2014, when Pakistan lifted a moratorium on executions in cases of capital punishment related to terrorism. The decision to partially lift a six-year unofficial moratorium on executions was in response to an attack on a school in Peshawar, killing 150 people, almost all of them children. Pakistan Tehreek-e-Taliban claimed responsibility for the attack.
In January, Pakistan also amended the Constitution and the Army Act, 1952, empowering military courts to try civilians for terrorism related offences.
“The Pakistani people face a very real threat from terrorist attacks, but there is no indication that the death penalty will decrease this threat,” said Zarifi. “Instead, the government is targeting hundreds of people on death row whose convictions had nothing to do with terrorism-related offenses.”
In Pakistan, capital punishment is prescribed for 27 different offences, including blasphemy, sexual intercourse outside of marriage, kidnapping or abduction, rape, assault on the modesty of women and the stripping of women’s clothes, smuggling of drugs, arms trading and sabotage of the railway system. Many of these crimes do not meet the threshold of ‘most serious crimes’ stipulated by Article 6 of the International Covenant on Civil and Political Rights (ICCPR).
Pakistan ratified the ICCPR in 2010. Article 6 of the ICCPR, guaranteeing the right to life, requires that states restrict capital punishment to only the ‘most serious crimes’. The UN Special Rapporteur on extrajudicial, summary or arbitrary executions has clarified that in the context of the death penalty, the definition of the ‘most serious crimes’ is limited to those cases in which there was an intention to kill, which resulted in the loss of life.
In December 2014, the UN General Assembly adopted a resolution, that emphasizes that that the use of the death penalty undermines human dignity and that calls on countries that maintain the death penalty to establish a moratorium on its use with a view to its abolition. An overwhelming majority of 117 UN Member States voted in favor of the call for a worldwide moratorium on executions, as a step towards abolition of the death penalty.
Pakistan should reinstate a moratorium on the death penalty, with a view to definitively abolishing the practice in law,” said Zarifi.
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.
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 Pakistan (London), t: +447889565691; email: reema.omer(a)icj.org
Apr 21, 2014 | Cases, News
The ICJ welcomes the 16 April 2014 judgment of the Court of Appeal of Victoria, Australia, in Christian Youth Camps Ltd & Anor v Cobaw Community Health Services Ltd & Ors [2014] VSCA 75. The ICJ intervened as amicus curiae in the case.
Mar 20, 2014 | News
The ICJ today called on the Ukrainian authorities to discontinue criminal prosecutions and dismissals of Constitutional Court judges.
These measures, which came at a time of crisis in the country, were taken due to disagreement with a ruling made by the judges in 2010.
The measures interfere with the independence of the judiciary, and are inconsistent with the principle of separation of powers and respect for the rule of law.
Wilder Tayler, ICJ Secretary General underscored that “In times of crisis the stability and continuity of the judiciary is essential. Judges should not be subject to arbitrary removal, individually or collectively, by the executive, legislative or judicial branches”.
On 24 February 2014, the Verkhovna Rada, the Parliament of Ukraine, adopted a resolution according to which twelve of the eighteen judges of the Constitutional Court were to be dismissed by the institutions which appointed them.
Five of the judges were dismissed by the Rada itself. The Rada recommended that the Acting President and the Congress of Judges consider dismissing the other seven judges.
On 13 March, the Parliament appointed four new judges of the Constitutional Court.
The grounds for dismissals were breaching the oath of a judge.
Moreover, in accordance with the resolution, the Prosecutor General was assigned by the Parliament to initiate criminal proceedings against those judges who were “guilty of adopting the decision of the Constitutional Court of Ukraine of 30 September 2010 No 20-rp/2010”, which overturned the adoption of the Constitution of 2004.
The Parliament’s resolution against the justices of the Constitutional Court followed the Ukrainian political crisis, which reached its peak on 22 February 2014 after three months of protests and violent clashes, and resulted in a change of government.
“The ICJ is deeply concerned at the dismissal and criminal prosecution of Ukrainian Constitutional Court judges on grounds of their interpretation of the law in judicial decisions” said Wilder Tayler.
“These measures are inconsistent with respect for the independence of the judiciary and the rule of law. It is precisely at moments of transition or crisis, such as Ukraine is now experiencing, that upholding the rule of law and the separation of powers is most critical. Any disciplinary action against judges must respect the independence of the judiciary, be based on established standards of judicial conduct and be taken only following a fair procedure in which the rights of the judge concerned, including to a defence, are respected.”
The ICJ stressed that action taken against the judges of the Constitutional Court is inconsistent with the duties of all branches of the government of Ukraine to respect and protect the independence of the judiciary.
This duty, a fundamental pillar of the rule of law and a fundamental aspect of the principle of separation of powers of the three branches of government, is enshrined in both the European Convention on Human Rights and the International Covenant on Civil and Political Rights, international human rights treaties to which the State is a party.
Furthermore, Article 1 of the UN Basic Principles on the Independence of the Judiciary clarifies that all governmental and other institutions must respect and observe the independence of the judiciary.
This requires that judges have jurisdiction over issues of a judicial nature and that judicial decisions by courts must not be subject to revision (Principle 4).
Judges must have guaranteed tenure until a mandatory retirement age or the expiry of their term of office (Principle 12) and can be subject to suspension or removal only following fair procedures (Principle 17) and only for reasons of incapacity or behaviour that renders them unfit to discharge their duties (Principle 18).
The European Court of Human Rights found, in the recent case of Volkov v Ukraine, that dismissal of a judge of the Ukraine Supreme Court through a parliamentary procedure violated the right to a fair hearing under Article 6.1 of the European Convention on Human Rights, since there had been insufficient examination of the merits of the case, and it had not been heard by a tribunal established by law.
Contacts:
Róisin Pillay, Director, Europe Programme, t + 32 273 48 46, roisin.pillay(a)icj.org
Temur Shakirov, Legal Adviser, Europe Programme, t + 41 22 979 38 32, temur.shakirov(a)icj.org
Ukraine-dismissal and criminal prosecution of judges-news-2014 (Statement, PDF)
Sep 26, 2012 | Advocacy, Cases, Legal submissions
The ICJ and others argue that Spain should assume jurisdiction, as the US has allowed for impunity of top officials who facilitated torture.
The ICJ joined the Center for Constitutional Rights, the European Centre for Constitutional and Human Rights and other leading organizations and scholars, arguing that the Spanish Supreme Court should reopen the investigations for participation in or aiding and abetting torture and other human rights abuses against six senior legal officials of the Bush Administration.
The brief argues that Spain should exercise jurisdiction under Spanish law because the US itself has failed to carry out any meaningful investigations and prosecutions against the officials, who are alleged to have provided legal authorisation for torture practices against “war on terror” detainees.
The officials are David Addington (former Counsel to, and Chief of Staff for, former Vice President Cheney): Jay S. Bybee (former Assistant Attorney General, Office of Legal Counsel (OLC), U.S. Department of Justice (DOJ); Douglas Feith (former Under Secretary of Defense for Policy, Department of Defense (DOD); Alberto R. Gonzales (former Counsel to former President George W. Bush, and former Attorney General of the United States); William J Haynes (former General Counsel, DOD); and John Yoo (former Deputy Assistant Attorney General, OLC, DOJ).
SpainUSA-Bushlawyers-AmicusBrief-2012-eng (download third party intervention)
