Saturday, August 8, 2015

Analysis of the military courts case from Pakistan

The Daily Times is running this op-ed by Dr. Ejaz Hussain and Sharafat A. Chaudry about Wednesday's decision of the Supreme Court of Pakistan in the military courts case. Among other things, they point out that the majority never grapples with the dissenters' arguments -- and remind us that today's dissent may be tomorrow's majority opinion. Excerpt:
"These dissenting opinions refute the legality of military courts on the following grounds. First, it is an utter violation of Article 25(A) of the Constitution by giving discretionary powers to the government to choose certain accused to be tried by the military courts under the Pakistan Army Act, 1952, while others by the ordinary courts, as all citizens require equal treatment and are presumed to be innocent unless they are proven guilty. Secondly, military courts amount to establishing a parallel judicial system and, thirdly, conferring powers of the judiciary to executive (military personnel) amounts to subverting the basic essence of the Constitution, i.e. separation of powers."
Because of the sheer bulk of the decision (902 pages), analyses of the case are only now beginning to appear.

The Express Tribune notes here that there is some concern about the court's assertion that decisions of the military courts will be subject to review in the civilian superior courts. Some sources said this was nothing new (many court-martial cases are already pending review in the civil courts), while others report that the government is considering asking the Supreme Court to revisit that issue. According to the majority, military court decisions are reviewable on the grounds that they are coram non judice (not before a judge), without jurisdiction or mala fide.

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