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.
©SantoshChaubey