Document Type

Article

Disciplines

International Law

Abstract

The Islamic Republic of Pakistan amended its Constitution and enacted the 21st Constitutional Amendment. The subject amendment created the military courts which empowered to try civilians who have been accused of committing crimes of terrorism. The thesis of the paper focuses on whether the newly enacted military courts violated the doctrine of separation of powers and deprived the accused civilians of their fundamental rights, i.e., the right to a fair trial and due process by an independent and impartial judiciary. Additionally, it focuses on whether the trials of civilians before military courts under the 2 1 st Amendment deprived them of their constitutional rights; i.e., lack of protection of fundamental guarantees; no right to appeal; and is contrary to the constitutional principle of separation of powers. The military, is generally commandcentric; it is part of the executive branch; its courts are uniquely designed to police the behavior of its members by the applying special rules and procedures. The notion of separation of powers, independent judiciary is inherently lacking in the field of militarized justice. Militarized justice is a symbol of a weakness as well as an indication of nonfunctional civil judicial system. The international community perceives the militarized justice as a stigma for any country which it must shun at all costs.

The purpose of this paper is to analyze whether the trials of civilians in military courts under the 2 1 st Constitutional Amendment violate Pakistan's obligations under the standards of International Law-categorically, the requirements laid out in Article 14 of the International Covenants of Civil and Political Rights (ICCPR). For analysis and comparison purposes, the factual narratives have been adapted from the "Petitions" which were filed and decided by the Supreme Court of Pakistan.

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