Abusive Constitutionalism and the Establishment of Military Courts for the Trial of Civilians under the 21st Amendment to the Constitution of Pakistan 1973
Keywords:21st Amendment, Abusive Constitutionalism, Military Courts, Constitutional Courts, Fundamental Rights, Fair Trial
The 21st amendment to the Constitution of Pakistan 1973 is frequently criticized because it extended the jurisdiction of the military courts to try civilians accused of terrorism. The proponents of the 21st amendment argue that the reason for this extension is the failure of the criminal justice system of Pakistan to punish the terrorist. The opponents, on the other hand, consider it as an interference of the military in the democratic regime of Pakistan, hence, an example of abusive constitutionalism. Abusive constitutionalism is a mechanism for constitutional changes, either by way of constitutional amendments or constitutional replacements, at the instance of any institution of the state for a particular purpose. The study in hand, through qualitative content analysis, tries to find the answer to the questions like whether the 21stamendment in the Constitution of Pakistan is an example of Abusive Constitutionalism or not? Whether the formation of military courts in Pakistan is an abuse of Constitutional Courts in Pakistan? Whether 21st amendment affects the fundamental rights of the citizen of Pakistan especially the right to a fair trial as guaranteed by Article 10-A of the Constitution of Pakistan 1973? Whether the 21st amendment is making the country less democratic or not? The study finds that formation of the military courts, for the trial of civilians, is offensive to constitutional courts. Moreover, the trial in the military courts violates the standards of the fair trial as established by international conventions on human rights and the Constitution of Pakistan 1973. The study concludes that the 21st amendment to the Constitution of Pakistan 1973 is an example of Abusive Constitutionalism.