Focus on Pak military justice

Vijay Mohan

Tribune News Service

Chandigarh, April 11

While India and Pakistan lock diplomatic horns over the conviction of a former Indian Navy officer, Commander Kulbushan Jadhav, by a Pakistani Field General Court Martial on charges of spying, the incident has also brought into focus the Pakistani military justice system.

Though the militaries of both countries share a common colonial past and have evolved from the same organisational structure, the system of imparting justice and post-trial remedial options are vastly different in both countries.

According to Army officers and legal experts familiar with the Pakistani military system, there may be little hope of Jadhav getting relief from the Pakistani establishment except for a presidential pardon.

Jadhav, whose sentence of death by the Pakistani military court already stands confirmed by the Pakistan Chief of the Army Staff, General Qamar Bajwa, was tried at a secret location, and can present a post-confirmation petition and an appeal to the military ‘Court of Appeals’ within 40 days.

However, experts say that calling the said body a ‘court’ can be a misnomer since it consists of serving military officers who may not be willing to overturn a verdict that stands confirmed by the Army Chief or an officer authorised by him. It is not a judicial body but merely an executive body that is neither trained in law nor independent from the Army. Further draconian is the situation that civilian courts in Pakistan, by law, cannot interfere in court martial verdicts at all.

This is unlike the system in democracies such as India, UK and the US where civil courts give utmost deference to the rights of military personnel and aggrieved individuals can challenge judgments of military courts in independent judicial forums like the Armed Forces Tribunal, High Court and the Supreme Court.

High Court lawyer and military law expert Major Navdeep Singh said the Pakistan Army Act (PAA) permits the trial of civilians under Section 2(d) which has been deprecated by the international community time and again. “Unfortunately, the law to try civilians in military courts has been upheld by the Supreme Court of Pakistan despite many of such trials having been held in secret locations without the benefit of a counsel and in most of the trials the accused pleading guilty under duress. Even primitive forms of punishment such as death by stoning, whipping and amputation are also authorised under the PAA,” he said.

“Such military trials do not meet the requirements of Article 14 of the International Convention of Civil and Political Rights which ordains trial by an independent, impartial and competent tribunal,” he said.