Can the civilian courts review a court-martial in Pakistan?

The availability of civilian court review is a key element in the 2006 UN Draft Principles Governing the Administration of Justice Through Military Tribunals (also known as the Decaux Principles). Principle No. 17, Recourse procedures in the ordinary courts, states in pertinent part: "In all cases where military tribunals exist, their authority should be limited to ruling in first instance. Consequently, recourse procedures, particularly appeals, should be brought before the civil courts. In all situations, disputes concerning legality should be settled by the highest civil court. . . ."

Against that backdrop, Dawn reports here on some strange developments regarding efforts to obtain High Court review of numerous courts-martial in Pakistan. Excerpt:

It may be noted that there is an ouster clause in the Constitution that bars high courts from hearing matters related to the military.

Article 199 (3) says: “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.”

However, the superior courts can take up petitions where they observe some mala fide on part of the military authorities.

Martin Luther King Jr. Day

Testimony about torture in Gambian court-martial

The Gambian court-martial continues, as does the excellent courtroom coverage. Here is the latest account, detailing testimony last week about torture. Excerpt:

"My hands were cuffed and my legs were tied and my head was forced into a pan full with water" [Lieut. Yaya Jammeh] said.

"After my head was pulled from the pan, I was asked to give a different statement but I still maintained my position. I still maintained my position that I know nothing taking place at the time" he said.

He continued in evidence in chief that his private part was tied so that it was difficult to pass urine out. He added that one of those who tortured him was his junior in the military who was Lieutenant Yusupha Jallow who was an investigator and now a prosecutor.

"There is nowhere in the GAF ethics that a junior should look at the private part of his senior talk less of torturing a senior" he said.

Chelsea Manning files for U.S. Senate race

Chelsea Manning, who figured in one of the highest-profile U.S. courts-martial in years, has filed papers to run in the Democratic primary against Senator Benjamin L. Cardin (D.-MD) later this year, The New York Times reports. Manning's 25-year sentence for leaking classified information was commuted after nearly seven years by President Barack Obama a few days before he left office. According to this Newsweek article, Manning's conviction is not disqualifying. 

The Guantanamo Eleven's habeas petition

Eleven Guantanamo detainees have filed this petition for a writ of habeas corpus challenging their continued detention. The case, Al Bihani v. Trump, has been assigned to Judge Royce C. Lamberth of the U.S. District Court for the District of Columbia. Excerpt:

For these 11 habeas petitioners, Guantánamo now sits in an even more precarious and dubious legal space than it did in 2002, when the executive branch resisted any legal constraints on its detention authority – a position the courts ultimately rejected in favor of judicial intervention. See Rasul v. Bush, 542 U.S. 466 (2004). Petitioners have all been detained between ten and sixteen years without charge or trial, and for much of that time, in subhuman conditions. Given the President’s commitment, in fulfillment of a campaign promise, not to release any detainees during his administration, they face an arbitrary additional term of detention of four, or possibly eight, years. Such an additional term of years will mean irreparable harm for Petitioners. For the aging and unwell among them, including some on prolonged hunger strike, it may not be survivable. Habeas is a flexible, equitable remedy that at its core is meant to check arbitrary executive action. When fundamental legal principles – and human lives – are at stake, the judicial branch is compelled to act.