Sunday, August 9, 2015

The Military Courts Case I

The Supreme Court of Pakistan's decision dismissing challenges to both the 18th and 21st Amendments, District Bar Association, Rawalpindi v. Federation of Pakistan, Const. Pet. Nos. 12 of 2010, was handed down on August 5, 2015. All told, the opinions in the case, which disposed of numerous constitutional petitions, run to 902 pages. Even though the 18th Amendment aspect of the case, concerning the appointment of judges, is very important, we will focus on the 21st Amendment aspect (permitting civilians to be tried by military courts), and will therefore, for convenience, refer to the decision as "The Military Courts Case."

On the negative side, the opinions are hopelessly prolix and redundant, taking little if any note of one another. They often set forth the parties'  arguments at length and repeat the text of documents that other opinions have already reproduced. Indeed, no effort has been made even to reformat the opinions in a uniform fashion. They are laden with lengthy quotations from earlier cases. The opinions are dismissive of pertinent international agreements to which Pakistan is a party, and even more so of the scholarly literature. There is no syllabus or official summary of what the court decided (other than the judgment of the court reproduced below) or how each individual judge voted.

On the plus side, reading at least some of the opinions offers a crash course in Pakistan's turbulent political and legal history going back in some instances well before Partition and independence. Of considerable interest is how the opinions deal with case law (and its political context) from neighboring India, where there is a wealth of jurisprudence concerning unconstitutional constitutional amendments. Also of interest is the range of other authorities referred to, including numerous references to decisions of the Supreme Court of the United States.

One of the opinions (incorrectly) quotes Groucho Marx as the source for every military lawyer's Least Favorite Saying About Military Justice.

The following seven posts present extracts from the opinions. As always, comments are welcome, but real names must be used -- nothing anonymous or pseudonymous.

Judgment of the Court

In view of the respective opinions recorded above, by a majority of 13 to 04 these Constitution Petitions are held to be maintainable. However, by a majority of 14 to 03 the Constitution Petitions challenging the Constitution (Eighteenth Amendment) Act (Act X of 2010) are dismissed, while by a majority of 11 to 06 the Constitution Petitions challenging the Constitution (Twenty-first Amendment) Act (Act I of 2015) and the Pakistan Army (Amendment) Act (Act II of 2015) are dismissed.

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