Kulbhushan Jadhav sentenced to death: All you need to know about the law that Pakistani military court used

Kulbhushan Jadhav has been sentenced to death by Pakistan on charges of espionage, conducting subversive activities and waging a war against the state (i.e. Islamabad in this case). Jadhav, who should have ideally been given consular access and a right to choose a lawyer to defend himself, was tried under the secrecy of a military court.

These military courts are notorious for their arbitrary trial process and have been questioned time and again by the civil society and liberals from Pakistan itself.

Sample this, "PPP Senator Farhatullah Babar had argued that the “practice of military courts pronouncing death penalty against unnamed accused by unnamed judges sitting at an undisclosed location and without any mention of charges, the case of the prosecution, the defence plea and disallowing independent observers violated the requirements of adequate procedural safeguards.""

These are the exact words of a Pakistani senator on these military courts as reported by Dawn

A file photo of former Indian naval officer Kulbhushan Jadhav. PTI

A file photo of former Indian naval officer Kulbhushan Jadhav. PTI

Here is another one: "The death sentence given to Kulbushan Jadhav shows yet again how Pakistan's military court system rides roughshod over international standards. Stripping defendants of their rights and operating in notorious secrecy, military courts do not dispense justice." This is what Amnesty International, an international human rights organisation had to say about Jadhav's sentence and Pakistan's military courts in general.

Add to this, an arbitrary all encompassing law that renders the armed forces of a country omnipotent, rendering them over and above the democratically elected government of that state. Such was the jurisdiction system which was used to declare Jadav guilty.

According to the Inter–Services Public Relations (ISPR) statement, Jadhav was charged under the Section 15 of Pakistan Army Act (1952) (PAA) and Section 3 of Offical Secrets Act (1923). Both the laws give immense power to the military courts and Pakistan Army.

Section 59 of the PAA states:

(1) Subject to the provisions of sub-section (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be [dealt with under this Act], and, on conviction, to be punished as follows, that is to say,

(a) if the offence is one which would be punishable under any law in force in Pakistan with death or with 1[imprisonment for life], he shall be liable to suffer any punishment 2* * * assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; and

(b) In any other case, he shall be liable to suffer any punishment 2*** assigned for the offence by the law in force in Pakistan, or 1* rigorous imprisonment for a term which may extend to five years or 1* such less punishment as is in this Act mentioned.

Provided that, where the offence of which any such person is found guilty is an offence liable to under any Islamic law, the sentence awarded to him shall be that provided for the offence in that law.

This essentially means that the military courts can try and sentence to death anyone who has committed a "civil offence" against Pakistan even in a place beyond its territory.

The subsection 3 of this clause further defines the power of jurisdiction that a Pakistani military court exercises.

The powers of a court martial 2[or an officer exercising authority under section 23] to charge and punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an offence against this Act.

3) (4) Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of sub-section (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act ; and the provisions of this section shall have effect accordingly.

Similarly, Section 3 of the Official Secrets Act determines the "penalties for spying". This is what it says:

(1) If any person for any purpose prejudicial to the safety or interests of the State-

(a) approaches, inspects, passes over or is in the vicinity of, or enters, any prohibited place; or

(b) makes any sketch, plan, model, or note which is calculated to be or might be or is intended to be, directly or indirectly, useful to any enemy; or

(c) obtains, collects, records or publishes or communicates to any other person any secret official code or pass word, or any sketch, plan, model, article or note or other document or information which is calculated to be or might be or is intended to be, directly or indirectly, useful to an enemy.

This law goes through a web of clauses and subclauses essentially to lay out that any person even perceived to have a  'purpose prejudicial to the safety or interest of the State' can be prosecuted and punished with a death sentence.

It is instructive to note here that Pakistan had introduced these courts under an amendment introduced in January 2015. These ill-famed military courts were to automatically disband after a period of two years, i.e. January 2015. However, just days before Jadhav's conviction, on 22 March, Pakistan's senate passed an amendment to grant them extension (read legitimacy) for another two years, according to The News

A Pakistan military court sentenced Jadhav to death after he was convicted of "espionage and sabotage activities". Military's media wing said in a statement on Sunday that the sentence was passed by a Field General Court Martial and confirmed by Army Chief General Qamar Javed Bajwa.

India has warned Pakistan that bilateral ties would be hit if it went ahead with the death sentence awarded to Jadhav, who Islamabad says was arrested in Balochistan in March 2016. External Affairs Minister Sushma Swaraj equalled the so-called justice system to a farcical charade to cast aspersions on India. She reiterated that if Jadhav was hanged, it would amount to premeditated murder. India maintains that the justice system was flawed, arbitrary and farcical and the fact that Pakistan didn't risk the scrutiny of a civil court in itself proves that the entire narrative is ridden with loopholes and cooked up to malign India.

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Updated Date: Apr 11, 2017 19:57:06 IST

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