The article originally appeared on India Today.
Here it is modified and extended.
Section 59 of the Pakistan Army Act sounds like a death knell for anyone whosoever is tried under it. Defined as the Section for Civil Offences, it categorically lays out conditions for it to become an overarching legal intrusion into the fundamental rights of humanity.
And when read in conjunction with other supporting sections and sub-sections of the Pakistan Army Act, we find a lethal tool that Pakistan’s Army so indiscriminately uses to suppress voices of human rights activists, lawyers, journalists, its own members who go against senior officials or against Indians, as has happened with Kulbhushan Jadhav. Kulbhushan Jadhav is a formal naval officer turned businessman who was on a routine business trip to Iran when he was abducted by the Pakistani intelligence. A Pakistani statement claimed Jadhav, who allegedly used the alias Hussein Mubarak Patel, was attached to the Research and Analysis Wing (RAW).
According to an ISPR press release, a Field General Court Martial (FGCM) found Kulbhushan guilty of espionage and sabotage activities and of waging war against Pakistan by fomenting unrest in Balochistan and Karachi. He was tried under Section 59 of the Pakistan Army Act 1952 and Section 3 of the official Secrets Act 1923 and was found guilty of all charges in a secret trial in a military court where no information on charges and evidence was shared.
According to Pakistan Army Act 1952, the Section 59 defines Civil Offence as,
SECTION 59: CIVIL OFFENCES
(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 hadd under any Islamic law, the sentence awarded to him shall be that provided for the offence in that law.
The sub-section further defines the powers of court-martial:
The powers of a Court martial [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.
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.
Now, let’s see what clause (d) of sub-section (1) of section 2 of the Pakistan Army Act says:
SECTION 2: PERSONS SUBJECT TO THE PAKISTAN ARMY ACT 1952
CLAUSE D OF SUB-SECTION 1
Persons not otherwise subject to this Act who are accused of__
- Seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
- Having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923, and
- Raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies, or attack any civil or military installations in Pakistan; or
- Provide or receive funding from any foreign or local source for the illegal activities under this clause shall be punished under this Act.
The Pakistan Army Act sounds like a convoluted document that gives unbridled power and illegitimate secrecy to military courts in Pakistan and these are some of its legal jargons that Pakistan has used against an innocent Indian.
Pakistan has also invoked the Official Secrets Act 1923, a British era document that has been the subject of intense debate in India for its archaic provisions. Both countries have inherited many colonial legacies like this. But Kulbhushan Jadhav’s sham trial and punishment show Pakistan uses it with impunity.
Section 3 of the OSA 1923 defines penalties for spying that can be upto fourteen years of imprisonment and goes on to say,
“It shall not be necessary to show that the accuse person was guilty of any particular act tending to State, and notwithstanding that no such act is proved against him, he may be convicted, if from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interest of the State.”
Pakistan had established military courts in 2015 with a constitutional amendment to try people for terrorism and related offences committed in civilian areas after the December 2015 Peshawar school massacre and only last month, in March 2017, its parliament voted for another two years extension to them. Since their establishment, the military courts have an absolute record of convictions with no acquittals. According to the Pakistan’s military, the military courts have convicted 274 people in last two years, 161 of them being sentenced to death and 113 to varying prison terms.
India has strongly protested the sentence likening it to murder and claims that the only evidence against Jadhav is his forced confession and is expected to raise the issue internationally to expose the Pakistani sham. Since Jadhav’s arrest in March 2016, India has repeatedly asked for consular access to him but the way he has been arbitrarily and summarily sentenced to death by its Army Chief Qamar Javed Bajwa, tells us that Pakistan was never serious about the Indian demands and about the established norms of international jurisprudence.