Here's a smart Foreign Policy essay by Zulfikar Hameed about the military courts controversy in Pakistan. Excerpt:
The amendments have been challenged in the Supreme Court of Pakistan by the Lahore Bar Association and several other applicants on the grounds that they are unconstitutional. A full bench of the Supreme Court has commenced the hearing on the merits of the challenges. These petitions challenge the amendments on the grounds that they violate several fundamental rights granted by the constitution like the right to due process of law, equal protection of laws, and right to a fair trial. The other leg of the argument is that these amendments have altered the basic structure of the constitution by taking away the jurisdiction of the superior courts of the country as courts of appeal.
Regardless of the outcome of the legal battle, the legal changes represent a quagmire of bad policymaking. The role of the armed forces has been increased in the present campaign against terrorism, while the role of the civilian institutions has been weakened. This trend is an admission of failure by the political leadership and signifies a lack of a will to reform the legal and judicial system. The larger question of reform of the legal regime of counterterrorism and the need for adequate investment in civilian law enforcement has been left hanging in the air. The issues of due process of law, of a fair trial, and adequate legal guarantees remain unaddressed in the rush to make changes which would affect the legitimacy of these amendments.
Pakistan’s leadership needs to come up with an effective legal response. Ensuring adequate legal representation, open court trials as far as possible, transparent rules of procedure, and regard for due process requirements is an immediate necessity. On the other hand, effective legislation that not only brings the substantive law into the present century but also fixes the procedural loopholes that allow interminably long trials and even longer rounds of appeals is also the responsibility of the parliament and government. Pakistan’s political leaders must ensure capacity enhancement, development of specialization, and operational autonomy for the civilian law enforcement and prosecution functions in the country. The path to Pakistan’s long-term stability and growth lies in addressing these thorny problems. This is the area where all well-wishers of the country should seek urgent action from the government and parliament of Pakistan.