Thursday, April 13, 2017

The Jadhav case, and a comparison of neighboring states' legislation

Dr Ashok Dhamija
Dr. Ashok Dhamija , a Supreme Court advocate in New Delhi, has written this comparison of Pakistani and Indian legislation on who is subject to military trial and how spying is dealt with. Excerpt:
It goes without saying that there is a vast difference between the prosecution in an open court and that in a Court Martial. More often than not, you cannot expect full justice in a Court Martial which is conducted by the military officers. In the case of [KulbhushanJadhav, till recently, in December 2016, Sartaj Aziz, Pakistan’s Foreign Minister, had told members of the country’s senate that there was insufficient evidence presented of Mr Jadhav’s alleged espionage. But, suddenly, in the most secretive manner, without letting the world know when he was charged and when he was tried, Pakistan has announced that Jadhav has been sentenced with death penalty by a Field General Court Martial, a military court consisting of Pakistan army officers, and that the Pakistan Army General has approved the said sentence. Any consular access to him was completely denied by Pakistan. No defence lawyer apparently; at least, not an independent defence lawyer (in India, it is a fundamental right to get a defence lawyer of your choice). The trial was secret. This, by itself, shows how unjust, hollow and farcical such trial would have been. India has rightly said that if Jadhav is hanged, it would be nothing but a premeditated murder. 
Now, the question is why can’t India also have similar legal provisions? Why can’t India also amend its laws in a similar manner? 
It is noteworthy that many Pakistan ISI spies are regularly caught in India indulging in anti-India activities. We prosecute them under the ordinary laws and in ordinary courts, and not in Court Martial, and moreover, there is no death penalty for such offences in India. We handle them with kid gloves. 
For example, this news report shows that there are 30 Pakistan nationals currently facing charges of spying who are in Indian jails but none of them has been denied consular access whenever sought. No Pakistan spy has been sentenced to death. On the other hand, Pakistan did not allow India to have any consular access to Jadhav even once.
As a political matter, the suggestion to fight fire with fire may be superficially attractive, and perhaps the case will be resolved by a prisoner exchange or other means, but there is little to recommend replicating Pakistan's unfair legislation. Some basic facts and questions about Pakistan's military courts are summarized here.

1 comment:

  1. In Pakistan, the FGCM, besides being constituted by military officers who lack legal education, the court members remain subject to military command; the right to a public hearing is not guaranteed; a duly reasoned, written judgment is denied; and the right to appeal to civilian courts is not available;. In addition, the procedures of FGCM, the location and timing of trial, and details about the alleged offences are kept secret.

    Pakistan is a signatory to the International Covenant on Civil and Political Rights, article 14 of which lists certain guaranties relating to trial in a court including military courts. The Commission on Human Rights has approved certain principles governing the administration of justice through military manuals. The laws authorizing the trial of civilians in military courts in Pakistan are incompatible with international standards, which require that those accused of any criminal offence- no matter how heinous- are guaranteed a fair trial by an independent, impartial and competent tribunal. Geneva based International Commission of Jurists (ICJ), composed of 60 eminent judges and lawyers from all regions of the world have also criticized trials held under FGCM in Pakistan. Ms Reema Omar, a noted lawyer of Pakistan, has also condemned trial of civilians by Pakistan’s FGCMs. In fact trial of civilian in FGCM violates fundamental rights guaranteed under Article 10A of the Constitution of Pakistan.

    The appellate forum which Jadhav can approach within 40 days of trial is also a farce. The appellate court under section 133B of Pakistan Army Act will consist of the chief of the army staff (COAS), another officer and a military judge advocate selected by the COAS for this purpose. The appellate process is a paper action and possibility of evaluation of the evidence and the conduct of trial may be ruled out. The decision of the appellate court shall be final and cannot be questioned before any authority. Though the Supreme Court and high courts may review the decision of the military courts, they have always succumbed to pressure from the military hierarchy in Pakistan.

    The military courts established in Pakistan post-January 2015 lack almost all the guarantees of independent and impartial tribunals. A Constitutional Amendment has revived these courts in March 2017. Unfortunately Jadhav is the latest victim of this court. It has become a cliche to say that all countries have armies, but in Pakistan, the army has a country. It is performing three additional functions of legislator, judge and executioner.


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