There are now enough legal and generalist luminaries on both sides of the India-Pakistan border, who have pondered on the legal aspects of the Kulbushan Jadhav case in the International Court of Justice.
But when all the legal jargon is set aside, the fact of the matter is that Pakistan proposes to execute a non-national, without the benefit of a just and open trial, where the entire process from start to finish has been in the hands of the military.
The charges levelled against Jadhav can only be gleaned from the media, and from occasional pronouncements from Pakistani officials, who have variously called him a spy or a terrorist. There is a considerable difference between the two, but that doesn't seem to matter to Islamabad or Rawalpindi.
Neither does it seem to matter that democracies of the world do not use military courts and do not resort to executing nationals of other countries. The last execution of a spy by a democracy was in 1953, when the United States executed its own nationals, Julius and Ethel Rosenberg, for spying for the Soviets.
That trial went on for three years and was hotly and openly debated upon. In India, the trial of Yakub Memon, for his role in the Mumbai blasts of 1993, went on for years. The accused in this case, however, had the benefit of a competent attorney and defence team till he was executed on 21 July, 2015.
Pakistan's military courts have executed 24 people this year, up to April 2017, while another 87 were executed the previous year. The Pakistani media (which is far more courageous and unbiased than most Indian media) pointed out that the trials were shoddy affairs, with families of those killed unaware of the why, when or what of the trial.
Pakistan set up an estimated eleven military courts in January 2015, in the aftermath of a horrific attack on an Army Public School in Peshawar, purely as a temporary measure on the grounds that the civil justice system was intimidated by terrorists and was unable to cope.
The 21st Constitutional Amendment and changes in the Pakistan Army Act provided the legal basis for trials of civilians by military courts. The courts were initially set up for a period of two years. The amendment was opposed by major Bar Associations in Pakistan and challenged in the Supreme Court.
Unlike the earlier 1999 judgment which had held such courts unconstitutional, it held that "deviation" from constitutional norms was allowed in exceptional circumstances, and at any rate, the trials were only to deal with "terrorists".
Six judges dissented on the need for military courts, noting that the state had other perfectly legal and legitimate measures – such as banning terrorist groups – to deal with terrorism, without violating the precepts of justice.
The nature of military courts in Pakistan are in violation of its obligations under the International Covenant on Civil and Political Rights (ICCPR) which it has signed. Article 14 of the ICCPR gives every individual the right to fair trial. The United Nations Human Rights Committee has also made clear that Article 14 applies to all courts, ordinary or specialised. It is also in contravention of various other international and regional human rights conventions.
All of these specify that for a trial to be fair it must be conducted by an "independent" and "impartial" court. Both of those requirements have been fleshed out by case law. In order to be independent, a court must be able to perform its functions independently of any other branch of the government, including the executive. Impartiality implies that the judges must not harbour preconceived ideas about the matter before them or act in favour of one of the parties.
It is therefore not so much the issue of a military court, as its impartiality which is in question. That a Pakistani military officer on a trial bench exercises independence to decide a case is stretching the imagination in a country that is under the "virtual" control of the military.
The lack of objectivity in the Pakistani military court system is also apparent in how the courts operate. International norms do allow military courts, but only in the first instance. Thereafter, judgments are open to appeals in civilian courts.
In India, the Armed Forces Tribunal Act ensures that at least a retired judge is sitting on every Bench. Further, an adverse decision may be appealed to the Supreme Court. Under Pakistan military law, there is no right of appeal in civil courts.
The tribunal which decided on Kulbushan Jadhav would have had three to five serving officers, with an "advisory" role for the representative of the Judge Advocate General. None of these officers is required to have any legal background. There is provision for a military Appellate Tribunal, which includes the Chief of Army Staff or his nominee. It has the power to reduce or enhance the punishment provided by the first court.
Technically, therefore, the Chief of Army Staff can allow clemency, where the sentence can be changed to imprisonment or even set aside altogether. None of this – execution or pardon – can be challenged in a civilian court. This provision has not yet been exercised in Jadhav's case.
There is another way out. During his arguments in the hearing on the 21st Constitutional Amendment in the Supreme Court, the Attorney General argued that Article 199 (3) provides a bar with the right of review by the high court, when the matter involves the Pakistan Armed Forces in terms of any action it might take. In other words, it was the view of the state that the courts had no right to review in cases decided by the military court – even in its expanded role.
In its detailed judgment on the 21st Amendment, however, the superior court had allowed the right of review on three counts: Where the judgment is mala fide, without jurisdiction or coram non-judice (where a judge is not present).
On the basis of this right of review, several pleas have been filed. Points raised by petitioners included denial of a right to counsel of choice, failure to disclose the charges against the accused, and failure to give a convicted person a copy of the judgment with reasons for verdict and sentence.
The Supreme Court did provide a stay of execution in a reported seventeen cases. On the basis of this judgment, the superior courts may choose to take up the Jadhav case. However, this again depends heavily on whether he is given consular access and thereby independent advice and counsel.
Notwithstanding the decision reached by the International Court of Justice, the move by India to raise the level has already made it difficult for Pakistan to carry out the execution.
The Pakistani side has indicated possible flexibility, noting that the accused had yet to exercise his right of appeal within 40 days to the military appellate court, an appeal to the army chief within 60 days, and notably a mercy petition within 90 days of that decision. In other words, it is finally a politico-military decision.
Following a fiercely contested debate in the media, and virtually none in Parliament, military courts were extended for another two years in January 2017. The executive, therefore, has not been precisely lagging behind in empowering the military.
Earlier, in 2015, a Presidential Ordinance extended the powers of the military courts to allow "in camera" trials, a system that is abhorrent to rule of law. Prime Minister Nawaz Sharif, in an earlier term, had resorted to military courts following severe instability in Sindh.
The Supreme Court had then ruled that the country better beef up its existing anti-terrorism courts, which had been set up under the Anti-Terrorism Act of 1997, and ruled that military courts were unconstitutional.
The view at the time was that Sharif was pandering to the military in an effort to keep his seat. In the event, that effort came to nothing. A brief review of the Pakistani media will indicate that Sharif is again at the wrong end of the stick. The media notes in a Cassandra-like statement, that military courts are usually followed by a coup.
There is a second reason why Sharif is unlikely to bend backwards to save Jadhav. The prime minister, together with the army, is wholly committed to the success of the China-Pakistan Economic Corridor (CPEC).
During his recent visit to China, to attend the Belt and Road conclave, he assured the Chinese that any 'sabotage' (as against terrorism) in Gwadar or against CPEC would be dealt with severely.
The stage is set. Even as the Baloch continue to defy the might of the mainland, as they have done for at least three decades, Pakistan's aggressiveness is set to increase, as it strains to fulfil its promise to its 'all weather friend'. Jadhav is part of that strategy to pass the blame onto the Indians. New Delhi together with Tehran has just made that more difficult.
The author was a director of the National Security Council. Views expressed are personal.
Updated Date: May 17, 2017 10:58 AM