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Depriving Kashmiris from
their basic human and birth rights
As the British left India, they give the right to few a
princely states either to Join India or Pakistan; or to
remain independent. The state of Jammu and Kashmir was
also given that option. The Maharaja or King of Jammu
and Kashmir decided to remain independent after
consultation with the founder of Pakistan. He hoisted
the Pakistani Flag in Jammu and Kashmir along with the
Flag of Pakistan for almost one Month.
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Civil-military jurisdictions
By Najam Sethi
The question of the jurisdiction of civilian
courts over military matters is now firmly lodged in the
public imagination. In the last few years, hundreds of
Baloch nationalists and alleged secessionists have
"disappeared" into the black hole of the military's
various intelligence outfits. Attempts by the Supreme
Court to extract them from the clutches of the agencies
have met with limited success. But the recent custodial
deaths of four alleged terrorists facing court martial
for attacks on the army has made front page news and
compelled the SC and Peshawar High Court to take notice.
Part of the problem is related to the law of civilian
jurisdiction and part of it has to do with the
long-standing and unaccountable power of the military.
But the major political parties are now contesting the
military's political outreach. So it is time to also
argue for a relevant change in the law in order to
facilitate the application of fundamental rights.
The laws in question are the various Army, Air Force and
Navy Acts of 1952 etc., and articles 199 (3) and 184 (3)
of the constitution. Article 199 (3) says: "An order
shall not be made [by the High Court] under clause (1)
on application made by or in relation to a person who is
a member of the Armed Forces of Pakistan, or who is
for the time being subject to any law relating to any of
those Forces, in respect of his terms and conditions
of service, in respect of any matter arising out of his
service, or in respect of any action taken in relation
to him as a member of the Armed Forces of Pakistan or
as a person subject to such law." Article 184 (3)
says: "Without prejudice to the provisions of Article
199, the Supreme Court shall, if it considers that a
question of public importance with reference to the
enforcement of any of the Fundamental Rights conferred
by Chapter I of Part II is involved, have the power to
make an order of the nature mentioned in the said
Article."
A combined reading of such Acts and Constitutional
provisions has served to restrict the jurisdiction of
the high courts in matters pertaining to the application
of sections of the military-related Acts, including
denial of Habeas Corpus, to civilians even in peace time
and in "non-disturbed" or special areas. Consequently,
proceedings of courts-martial and appeals cannot be
challenged in the high courts of Pakistan. Judges
Advocate-General of the military are always uniformed.
And the SC's jurisdiction under 184 (3) is limited to
matters that are both of "public importance" and also
related to fundamental rights. |
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