Abusive Constitutionalism and Military Courts in Pakistan

Abstract

The article analyses the constitutionality of military courts in Pakistan, to determine the extent they are compatible with constitutional scheme of Pakistan. The 21st amendment accepted the military courts conditionally. The establishment of military courts has raised concerns on enforcement of fundamental rights, specifically safeguards as to detention and arrest, right to fair trial and due process, dignity of man and protection against double jeopardy. These inalienable rights of people must enjoy the protection of law. The judiciary’s role is to provide justice according to the constitution and laws of the state same cannot be assigned to any other institution. The role of Armed Forces to exercise judicial powers necessitated through an 21st constitutional amendment is not in aid of civil power and the judiciary but supplanting it. The 21st amendment submerges fundamental rights under national security policies. Military courts work as a detached parallel departmental justice system to the national justice system. This article summarily puts across the challenging and contradictory viewpoints of military courts and discusses their merits in an objective way in the light of constitutionalism, focusing whether the military courts qualify the test of constitutionality and protection of fundamental human rights or it is abusive constitutionalism.