The Express Tribune has this worthwhile summary of a roundtable discussion of issues arising from Pakistan's new military courts legislation. One speaker called the 21st Amendment a "soft coup." From the article:
[Former Lahore law professor Waqqas] Mir said the only way the establishment of military courts could now be challenged in a court was on grounds of the Basic Structure Doctrine.
He said there was no precedent in the history of Pakistan’s Supreme Court where it had struck down anything that involved the military or national security concerns – including military coups.
In response to Society of International Law Executive Director Ali Sultan’s proposal that one could accept establishment of military courts as a stop-gap measure, Mir said the military could justify permanent existence of these courts if it charged enough people with terrorism in two years to meet the criteria laid out in Article 264 of the Constitution.
He said the Army Act provided for normal rules of evidence in trials conducted under its jurisdiction. But, he added, there was no way to ensure that they were actually applied in trials conducted by military courts. “If a convict feels that a court has not conducted the trail in accordance with the constitution, they have the right to appeal. There is no right to appeal against military courts,” he said.
Earlier, Sultan had argued that establishment of military courts in the context of the ongoing conflict between Pakistan Army and the TTP [the Pakistani Taliban] could be justified under international law.
He said TTP met the criteria laid out in the law on war between a state and a non-state actor. However, he said, military courts in Pakistan should only be a stop-gap arrangement. He also said there was a need for clarity in the language of the 21st Amendment.
He said there was no reason why it could not be narrowed and non-state combatants be identified.
He also opposed retroactive application of the 21st amendment.
Abid Saqi, former Lahore High Court Bar Association president, said establishment of military courts violated the right of access to justice. He lamented that while earlier attempts at putting in place military courts were carried out through executive orders, this time a constitutional amendment had been used for it. “This amounts to a soft coup. The military has put itself in the driver’s seat with respect to the conflict against the TTP,” he said.Speaking of the 21st Amendment, the government was supposed to submit its brief early this week, having disregarded the Supreme Court of Pakistan's initial briefing order. There's been nothing in the media about such a filing having been made. Friends in Pakistan: was something filed? Nor has there been any word on whether the Chief Justice will refer the 18th and 21st Amendment Constitutional Petitions to an expanded bench.
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