Sunday, July 17, 2022

Military jurisdiction over civilians in Pakistan

A useful new study by Muhammad Hassan, Ahmed Usman, Farah Amir, and Johan Shamsuddin, Perceptions of the Eminent Experts over the Constitution (21st Amendment) Act, 2015: An Analysis, assembles the views of Pakistani legal leaders on the Supreme Court's decision upholding the constitutional amendment that permitted civilians to be tried by military courts. According to the study's conclusion:

All are of the view that amending powers of the Parliament is impliedly limited, and it cannot be extended over the salient features of the constitution of Pakistan. However, they refer to various methods for the identification of basic features. Further, they all discoursed that the power of judicial review over ordinary legislation may be extended over the constitutional amendment to secure the spirit of the constitution. In consonance, they also observed that being the custodian of the constitution, it can also strike down any constitutional amendment on the touchstone of repugnancy with salient feature doctrine and scheme of the constitution. In addition, four out of six experts state that establishing a parallel judicial system in terms of military courts is a violation of the principle of judicial independence and the prescribed criminal justice system. Moreover, they also emphasized that the constitutional guarantees incorporated in the constitution cannot be guaranteed before martial tribunals. However, two out of six opined that the formation of the military court is not a violation of the principle of judicial independence, and it only deals with the terrorists warning against the Federation. They cannot be dealt with before the ordinary judicial system. Further, their right to a fair trial has not been violated, and they cannot claim those rights which should be provided to the civilised society.

The research concludes with the submission that Pakistan being a democratic country, must ensure the provision of equal fundamental rights to all accused irrespective of classification. The suspect civilian terrorists have the constitutional right to be tried under the due course of law. There should not be any inappropriate interference in the judicial process by displacing a parallel judicial system. It should take counter-terrorism measures with a proper balance between two principles, i.e., principles relating to the security of the State and principles relating to human dignity and freedom. There is a need for specific reforms in the criminal justice system to eliminate the terrorism expeditiously within the framework of constitutionalism. And it shall build durable confidence of the nation over the system of administration of justice. Further, it shall be an appropriate response to combat terrorism by way of isolating, thwart, and upholding the spirit of the Constitution.

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