Some laws are strange and some even stranger.
In former Naval Commander Kulbhushan Jadhav’s case, what exactly is the ‘appeal’ that Pakistan’s Defence Minister was talking about? Pakistan’s military law unsurprisingly prohibits the challenge to military verdicts in the superior civil judiciary. Unsurprising also is the fact that the so-called provision of ‘appeal’ under the Pakistan Army Act (PAA) is a sham, for it is placed before a body comprising serving Army officers who are expected to examine military verdicts confirmed by their own Army Chief.
It is not just a plea from Caesar to Caesar’s wife – as the Supreme Court of India had remarked about Indian military law – but from Caesar to Caesar himself.
Pakistan’s Military Courts Don’t Follow Principles of Justice
Jadhav, being a retired officer, is a civilian. While the international community and many legal luminaries and bar associations within Pakistan have protested the trial of civilians by military courts, the legal challenges so far have remained unsuccessful.
The star qualities of military courts in Pakistan, if I may call them so, albeit sarcastically, are quite revealing.
These courts comprise serving officers of the military having no inkling of law, legal procedures or international norms. The trials are held in secret locations. No counsel is provided. No copy of the decision is provided. There is no professional and independent prosecution or defence or even examination of evidence. The conviction rate is almost 100% with custodial confessions and all accused magically pleading ‘guilty’. And then there is no real appeal.
These trials run contrary to established principles of justice much cherished in democracies, characterised by the rule of law. They militate against the basic norms propounded by the International Covenant on Civil & Political Rights, especially Article 14, which calls for fair and public hearings in a competent, independent and impartial tribunal.
- Jadhav is a civilian and while the international community has protested the trial of civilians by military courts, it has remained unsuccessful.
- These courts comprise serving military officers with no inkling of law, legal procedures or international norms.
- These trials run contrary to established principles of justice. India is in a much better place in terms of its military courts.
- In India, there is still openness and acceptability of variance of opinion and there are voices in the defence services and the government that want to see progressive reform.
India’s Military Courts May Need Reform But Are Far Better Still
Interestingly, some would say that even Indian military courts are not much different from those of Pakistan. True, on a very conceptual level at the first superficial blush, but going deeper there are sharp dissimilarities.
Civilians are not tried by our military courts. Court martials and other administrative actions of the military can be challenged and remain under the sharp focus of the superior judiciary.
Admittedly, though our system of military law also is in need of relatable reform on the aspect of independence from command influence and prosecutorial autonomy, we are simply different since no organisation or entity in India is beyond question or judicial review.
Through the times, our high courts and the Supreme Court have stood as a shield against administrative tyranny for the populace, military personnel included, a reality much celebrated not only by our citizenry but also by the State.
What further sets us apart is that despite the inherent resistance to change, there is still openness and acceptability of variance of opinion and there are voices within the defence services and the government which would like to see progressive reform. The report of a committee of experts which had rendered strong recommendations on military justice reform is also currently under active consideration of the government. Further, in India there is not even a trace of primitive punishments such as death by stoning or amputation which the PAA proudly proclaims in Section 60.
This, however, does not mean that we can rest on our laurels, and paradoxically, Jadhav’s predicament provides us with an opportunity for honest introspection of our system too.
A high conviction rate and faster processes in the military, even in India, may reflect efficiency but not necessarily all-round judiciousness. While justice delayed is justice denied, justice hurried could also well be justice buried. It must never be forgotten that the aim of a trial is to secure justice, not conviction.
It would not be proper to dwell upon what might be the future of the issue so as not to jeopardise the diplomatic and legal efforts, or even to predict whether the sentence would ultimately be reduced and then a Presidential pardon effectuated on a give-and-take basis. But suffice to say that dehors the merits of the case, the least Jadhav deserved was a fair trial and it would only be proper for the world community and the civil society within Pakistan to strongly oppose these dehumanising extra-constitutional kangaroo courts which fail every single test of law, conscience and civility.
(Major Navdeep Singh is a practicing Advocate in the Punjab & Haryana High Court and founding President of the Armed Forces Tribunal Bar Association. He is also Member of the International Society of Military Law and the Law of War. He tweets @SinghNavdeep. This is an opinion piece and the views expressed above are the author’s own. The Quint neither endorses nor is responsible for the same.)
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