Saturday, November 8, 2014

Basic question raised in Pakistani court

A basic question is receiving attention in the courts of Pakistan: is a constitutional provision that seems to bar the civilian courts from reviewing military matters valid? This story from Dawn details the surprising sua sponte transfer of 68 cases from the Lahore High Court in Rawalpindi to the court's main seat for hearing before a larger bench. The cases involve all three branches of the Pakistani armed forces, and the issues raised range from the review of courts-martial to arbitrary decision making with respect to early retirement. The military justice issues include whether there is jurisdiction over civilians or military retirees.

Article 199(3) of the Pakistani Constitution provides: “An order shall not be made… on application made by or in relation to a person who is a member of Armed Forces of Pakistan or who is for the time being subject to any law relating to any of those forces.” Query: can a constitutional provision be unconstitutional? Not as crazy an idea as you might think.

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