Legal context of the Jadhav case

Wg Cdr (Dr) U C Jha has kindly provided the following report on the legal framework of the Kulbhushan Jadhav military court controversy between Pakistan and India:

It has been reported in The Hindu newspaper of today that Jadhav's mother has submitted an appeal. The punishment awarded by the Field General Court Martial (FGCM) to Jadhav was confirmed by the Pakistan Army Chief. The Appeal Court would consist of three members: the Army Chief, another officer, and a judge advocate appointed by him for this purpose. The Appeal Court under section 133B of the Pakistan Army Act has the power to: (a) accept or reject the appeal in whole or in part; (b) substitute a valid finding or sentence for an invalid finding or sentence; (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witnesses; (d) annul the proceedings of the Court Martial on the ground that they are illegal or unjust; (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of sentence or reduce or enhance the same. The decision of Court of Appeal, as provided in subsection 133B(3), shall be final and cannot be called in question before any court or any other authority whatsoever. The Supreme Court can interfere in the case only if the military court has acted without jurisdiction and coram non judice.

Section 133-B reads as under Court of Appeals for other cases:

(1) Any person to whom a court martial has awarded a sentence of death, imprisonment for life, imprisonment exceeding three months, or dismissal from the service after the commencement of the Pakistan Army (Amendment) Act, 1992, may, within 40 days from the date of announcement of finding or sentence or promulgation thereof, whichever is earlier, prefer an appeal against the finding or sentence to a Court of Appeals consisting of the Chief of the Army Staff or one or more officers designated by him in this behalf, presided by an officer not below the rank of Brigadier in the case of General Court Martial or Field General Court Martial or District Court Martial or Summary Court Martial convened or confirmed or counter signed by an officer of the rank of Brigadier or below as the case may be, and one or more officers, presided by an officer not below the rank of Major General in other cases, hereinafter referred to as the Court of Appeals; 

Provided that where the sentence is awarded by the court martial under an Islamic law, the officer or officers so designated shall be Muslims;

Provided further that every Court of Appeals may be attended by a judge advocate who shall be an officer belonging to the Judge Advocate General’s Department, Pakistan Army, or if no such officer is available, a person appointed by the Chief of the Army Staff. 

(2) A Court of Appeals shall have power to – (a) accept or reject the appeal in whole or in part; or (b) substitute a valid finding or sentence for an invalid finding or sentence; or (c) call any witness, in its discretion for the purpose of recording additional evidence in the presence of the parties, who shall be afforded an opportunity to put any question to the witness; or (d) annul the proceedings of the court martial on the ground that they are illegal or unjust; or (e) order retrial of the accused by a fresh court; or (f) remit the whole or any part of the punishment or reduce or enhance the punishment or commute the punishment for any less punishment or punishments mentioned in this Act. 

(3) The decision of Court of Appeals shall be final and shall not be called in question before any court or other authority whatsoever.

Editor's comment: It cannot be seriously contended that the Army Court of Appeals is independent, given the role of the Chief of Army Staff in both reviewing court-martial results and either serving on or designating a member of the Court of Appeals. This means that review by the Supreme Court of Pakistan will be the first proper judicial scrutiny of the Jadhav case (and any other case tried under the Army Act, whether involving military personnel or civilians). Because the Supreme Court's review is, as Wg Cdr Jha notes, narrowly constrained, it falls far short of the kind of meaningful civilian appellate review to which all criminal defendants are entitled as a matter of human rights.