scholarly journals Jurisdiction of Military Courts over Civilian Terrorists in Pakistan: A Miscarriage of Justice

2019 ◽  
Vol 27 (1) ◽  
pp. 63-88
Author(s):  
Muhammad Hassan ◽  
Johan Shamsuddin bin Sabaruddin
Keyword(s):  
Justice System ◽  
Due Process ◽  
Essential Element ◽  
Judicial Independence ◽  
Fundamental Rights ◽  
Military Justice ◽  
Depth Analysis ◽  
Due Process Of Law ◽  
The Subject ◽  
The Military

The jurisdiction of military court was extended over alleged terrorists under the Constitution (Twenty-first Amendment) Act, 2015, in order to permanently wipe out terrorism from Pakistan. The amendment was challenged and petitioners contended that jurisdiction of military courts could not be extended over alleged civilian terrorists because of their peculiar nature. Further, the presiding officer of the military court is a member of the executive, which contradicts the principle of judicial independence, an utmost essential element of safeguarding the due process of law. However, the apex court of Pakistan held that terrorism has a direct nexus with the safety and integrity of Pakistan, therefore, the Parliament was competent to expand the jurisdiction of military courts over civilian terrorists in order to secure the country’s safety and integrity and thus consistent with the recognized criminal justice system. This research critically analyzes the jurisdiction of military courts over civilian terrorists in accordance with the principle of judicial independence. It also identifies the breach of the fundamental rights of alleged civilian terrorists. This study also determines the capability of existing criminal law statutes of ensuring peace whilst maintaining justice for the accused persons. In order to achieve these objectives, this paper adopts a doctrinal research method and carries out an in-depth analysis of the amendments and judgments relating to the issue while also highlighting the constitutionality of the subject matter. Aside from that, juristic literatures and judgments of the superior courts are also analysed. The study concludes that an independent judicial tribunal is absolutely essential in order to ensure that justice is dispensed to the accused. It is further argued that the scope of the military justice system is limited to military personnel, which therefore cannot and should not be expanded over civilian terrorists.

scholarly journals A Teoria das Dimensões dos Direitos Fundamentais como Pressupostos à Consagração de Garantias Fundamentais: um Ensaio sobre o Acesso Efetivo à Justiça

2012 ◽  
Vol 7 (1) ◽  
Author(s):  
Paula Gigante Viana
Keyword(s):  
Key Words ◽  
Due Process ◽  
Fundamental Rights ◽  
Procedural Law ◽  
Constitutional State ◽  
Right Of Action ◽  
Due Process Of Law ◽  
The Subject ◽  
The Right ◽  
Procedural Rights

Resumo: O estudo objetiva a demonstração da teoria das dimensões dos direitos fundamentais como pressuposto à consagração de garantias fundamentais processuais. Para atingir tal intento foi utilizado o método da revisão bibliográfica, notadamente da doutrina constitucional, bem como do estudo de casos trazidos a debate por autores que analisam o processo sob a ótica da Constituição. A relevância do assunto deve-se ao momento atual da ciência jurídica em que a efetividade dos direitos fundamentais é um escopo concreto. Constatou-se a necessidade de tornar eficiente e efetiva a prestação jurisdicional no Estado constitucional e de reconhecer as garantias processuais como direitos fundamentais. Em tal contexto, a eficácia irradiante, a filtragem constitucional e a multifuncionalidade dos direitos fundamentais são abordados. E as balizas teóricas do neoconstitucionalismo e do neoprocessualismo ou formalismo-valorativo são analisadas como pano de fundo das noções desenvolvidas. Assim, a verificação da evolução dos direitos fundamentais processuais, mormente do direito de ação (tutela jurisdicional efetiva) e do devido processo legal (processo justo), a partir da aceitação da teoria das dimensões dos direitos fundamentais, conduz à conclusão de que se caminha na direção de um acesso cada vez mais efetivo à justiça. Palavras-chave: Normas Jusfundamentais; Direito à Proteção; Direito Processual; Conformação do Procedimento; Devido Processo Legal.  Abstract: The study aims at demonstrating the theory of dimensions of fundamental rights as an assumption to the recognition of fundamental procedural guarantees. In order to accomplish this intent the method of bibliographic review was used, notably the constitutional doctrine, as well as the study of cases brought into debate by authors who analyze the process under the eyes of the Constitution. The relevance of the subject is at the current moment of the juridical science in which the effectiveness of fundamental rights has turned into a concrete objective. It was verified the necessity to achieve an efficient and effective jurisdiction in the constitutional State and to recognize procedural guarantees as fundamental rights. In this context, the radiant effectiveness, the constitutional filtration and the multifunction of fundamental rights are approached. And the theoretical landmarks of neo-constitutionalism and neo-proceduralims are analyzed as a background for the notions developed. So the verification of the evolution of fundamental procedural rights, especially the right of action and the due process of law (fair trial), since the admission of the theory of dimensions of fundamental rights, conduce to the conclusion that heads toward the direction of a more effective judicial access. Key-words: Jus-Fundamental Norms; Right to Protection; Procedural Law; Procedure Adequacy; Due Process of Law.

scholarly journals Military Courts: Credibility and Capacity Implications for Superior Judiciary of Pakistan

2020 ◽  
Vol V (Winter 2020) ◽  
pp. 1-7
Author(s):  
Muhammad Haroon ◽  
Najib Ullah ◽  
Nazim Rahim
Keyword(s):  
Public School ◽  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Due Process ◽  
Legal Framework ◽  
The State ◽  
Fundamental Rights ◽  
Due Process Of Law ◽  
Standing Problem

Pakistan is going through turmoil of terrorism. The State is doing what it can to eradicate this menace and in so doing established Field General Court Martial commonly known as Military Courts in wake of barbaric attack on Army Public School in December 2014. However, it is not the solution to the long standing problem motivated and nurtured by various factors like political, religious etc. Instead drastic changes are required to amend and update the existing criminal justice system including legal framework, training for judges, prosecutions, protection of witnesses as well as prosecution/defense. This will pave a way for reforms and improve security situation in Pakistan instead of challenging the credibility and capacity of the superior judiciary. In this way, violence can be countered by respecting Fundamental Rights and following due process of law. Also this will enable the state institutes to cooperate in a better way

They Ought to Be Remembered

2020 ◽  
pp. 273-278
Author(s):  
Earl J. Hess
Keyword(s):  
Justice System ◽  
West Point ◽  
Military Justice ◽  
Enlisted Men ◽  
National Hero ◽  
The Individual ◽  
The Military

The failed attacks of May 19 and 22 produced many opportunities for participants to garner honors or deserve infamy, and those incidents either strengthened the rest of their lives or haunted them forever. A number of Federals failed the test of combat and shirked their duty, but the military justice system was weak and porous at best. While some of these acts of combat failure were officially reported, little was done by the system to punish the men. Officers were allowed to resign and the process of dealing with enlisted men was rarely called into use. It was easier to allow the individual to reflect and improve in his future conduct. Sgt. Joseph E. Griffith became a national hero because of his exploit at Railroad Redoubt. In fact, Griffith eventually won an appointment to West Point where he graduated and became an officer in the U. S. Army. Fourteen-year-old Orion P. Howe of the 55th Illinois became famous for telling William T. Sherman of the need for more cartridges as he returned from the failed attack of May 19 with a slight wound. Many members of the Forlorn Hope were awarded with Congressional Medals of Honor after the war.

scholarly journals La cuestión prejudicial europea ante planteamientos más que dudosos

2017 ◽  
pp. 270
Author(s):  
Luis Jimena Quesada
Keyword(s):  
Due Process ◽  
State Level ◽  
Fundamental Rights ◽  
Constitutional Court ◽  
Preliminary Ruling ◽  
Basic Principles ◽  
Starting Point ◽  
Due Process Of Law ◽  
Specific Discipline ◽  
The Eu

El presente artículo toma como punto de partida la importancia de la cuestión prejudicial como instrumento fundamental del actual constitucionalismo europeo multinivel, en la medida en que a través de él cabe dotar de fuerza a los principios esenciales del Estado de Derecho y de la UE como comunidad de Derecho (especialmente seguridad jurídica, responsabilidad, tutela judicial efectiva y optimización de los derechos fundamentales). Con tal premisa, se efectúa un análisis crítico de estrategias más que dudosas (no siempre aparentemente guiadas por buena fe procesal) que, por acción o por omisión, vulneran el artículo 267 TFUE poniendo en entredicho la fluida articulación del sistema jurídico europeo (de las normas de producción nacional y supranacional) y el correcto reparto del poder judicial europeo (entre la Justicia nacional y supranacional) y, con ello, la óptima realización del sistema europeo de derechos fundamentales. Finalmente, el trabajo concluye con unas propuestas que pretenden mejorar el diálogo judicial supranacional a través de un verdadero espíritu de colaboración que tenga el respaldo de una sólida formación de la Judicatura en Derecho europeo, de una voluntad jurisdiccional positiva (inspirada en el principio favor libertatis), de una dinamización de la obligación de formulación la cuestión prejudicial en los casos previstos en el artículo 267 TFUE y de una disciplina precisa de la doble prejudicialidad (ante la Jurisdicción Constitucional nacional y ante el Tribunal de Justicia).This article takes as its starting point the importance of the preliminary ruling as a fundamental instrument of the current multi-level European constitutionalism, since it allows for strengthening the basic principles of the rule of law at both the State level and the EU level (especially legal certainty, responsibility, due process of law and optimization of fundamental rights). With such a premise, a critical analysis of more than dubious strategies (not always apparently guided by good procedural faith) is carried out. Indeed, these strategies, by action or omission, breach Article 267 TFEU by challenging the fluid articulation of the European legal system (of national and supranational provisions) as well as the correct distribution of the European judicial power (between national and supranational courts) and, as a result, the optimal realization of the European system of fundamental rights. Finally, the paper concludes with proposals that seek to improve supranational judicial dialogue through a true spirit of collaboration supported by a solid training of judges in European law, a positive jurisdictional will (inspired by the favor libertatis principle), a re-dimension of the obligation to submit the preliminary ruling in the cases referred to in Article 267 TFEU and a specific discipline of a double preliminary ruling (both before the national Constitutional Court and before the Court of Justice).

Introduction: Separate rules for a separate society

2016 ◽  
Author(s):  
Eugene R. Fidell
Keyword(s):  
Criminal Justice ◽  
Criminal Justice System ◽  
Justice System ◽  
Good Deal ◽  
Individual Autonomy ◽  
Political Values ◽  
Military Justice ◽  
The Military

The military represents a specialized society within society as a whole. It has a specific purpose: the achievement of military goals that are in contrast to the goals of the larger society, which are, at least in democratic countries, aimed at maximizing individual autonomy. The Introduction outlines what military justice is and explains that the nature and scope of military justice in any particular country will tell a good deal about that country’s political values. It considers several questions: How does the military justice system differ from the civilian criminal justice system? What is a court-martial? What rights does a military accused have?

scholarly journals POPULATION CRITERIA AND BUDGETARY DETERRANT: DETERMINING FACTORS IN THE QUALITY OF THE SPANISH CRIMINAL JUSTICE SYSTEM

2021 ◽  
Vol 3 (4) ◽  
pp. 84-108
Author(s):  
Tomás Bastarreche
Keyword(s):  
Justice System ◽  
Due Process ◽  
Fundamental Rights ◽  
District Courts ◽  
Administration Of Justice ◽  
Determining Factors ◽  
Assess Quality ◽  
Do So ◽  
Judicial Performance

What is the quality of justice? As Melcarne and Ramello (2019) have recently pointed out, there is no clear interaction between quality and quantity in understanding or measuring judicial performance. However, the lack of human resources is often blamed for delays in the delivery of decisions (quantity) in most judicial systems - and could in fact mean a violation of the principle of due process. However, the study shows how difficult it is to assess quality, since even quantity (in fact calculable) cannot always be a trustful variable to measure it. In Spain, it is possible to assume that penal judges work more or less the same. Yet, not all judgments have the same quality. The problem is in the District Courts (some of insufficient size) with provincial criminal jurisdiction. They constantly run the risk - and do so - of breaching the principle of judicial impartiality. This does not happen in the Spanish Supreme Court or in the large District Courts. It is a problem in the judicial performance of justice and in the Administration of Justice. Yet, there are no budgetary or even regulatory stimuli to resolve this situation. A situation that implies a breach of the principles of due process and therefore of the fundamental rights of the accused.

Victim Behavior in a Sample of Military Sexual Assault Cases

2020 ◽  
pp. 088626052092235
Author(s):  
MAJ Karl Umbrasas
Keyword(s):  
Sexual Assault ◽  
Expert Testimony ◽  
Justice System ◽  
Public Health Problem ◽  
Forensic Evaluation ◽  
Military Justice ◽  
Military Sexual Assault ◽  
Case Files ◽  
Forensic Case ◽  
The Military

This study explored victim responses to sexual assault within a military context. Victim behavior was identified in forensic case files of service members charged with sexual assault ( N = 58) and referred for forensic evaluation or consultation. The identified victim behavior was coded and quantified for description. Of the sample 87.9% of victims were female and 12.0% of victims were male; 37.9% of the victims reported their assault in less than 1 month. Forceful resistance to the assault occurred in 15.5% of the cases. Physical injury associated with the sexual assault was absent in 96.5% of the cases. The description of victim behavior can inform forensic expert testimony on victim behavior within the military justice system while also offering empirical evidence to better understand this public health problem in the U.S. military.

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