Kulbhushan Jadhav’s conviction and death sentence by a military tribunal in Pakistan has drawn the attention of the world community to the practice of trial of civilians by military tribunals. In 2015, by a constitutional amendment (21st Amendment), military tribunals in Pakistan were empowered to try civilians accused of carrying out acts of violence and terrorism. The 21st Amendment was occasioned by a terror attack on Peshawar’s Army Public School which had left 141 dead.  

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The 21st Amendment arming military tribunals with judicial powers was meant to be a political response purportedly intending to wrest judicial powers from civilian courts in certain categories of heinous offences and investing the same with military tribunals for expedited trials. The reasons cited in support of the amendment were protracted trials and inefficiencies of the Pakistani civilian justice dispensation.  This aspect has been well documented in leading journals. Justice Report, Pakistan, published by Yale Law School (September 2016) paints the justice system in Pakistan as riddled with widespread corruption, a culture of police brutality that have created a permissive environment for the routine miscarriage of justice. 

The practical experience of working of these military tribunals in the last couple of years reveals that the political attempt of empowering military tribunals with judicial powers to try civilians has had a deleterious effect on the basic epithets of a fair trial.  

As a justice-dispensing institution, the system of trial of civilians by military tribunals has been frowned upon in international law. The UN Human Rights Committee, in its general comment 32, observed that the trial of civilians in military courts seriously impedes the equitable, impartial and independent administration of justice. Principle 29 of UN Updated Principles of Protection and Promotion of Human Rights also states that jurisdiction of military tribunal must be restricted solely to specific military offences committed by military personnel.

The procedure envisaged for trial in military tribunals in Pakistan reveals stark and abject conditions for an accused facing trial of serious offences which carry a punishment of death. A military tribunal is composed of three to five serving officers of the armed forces. These officers do not enjoy any security of tenure as members of the tribunal. Secondly, there is no requirement that these military officers who are officiating as judges are lawyers or have obtained any legal training. 

Thirdly, the proceedings of military tribunals are not public and are held in camera. The charges against the accused are not made public and the entire proceedings are behind closed doors. Fourthly, what is juristically shocking is that these military tribunals are not mandated to give reasons for their orders. The International Commission of Jurists   (June 2016 report) has stated that in almost 77 death sentences given by the military tribunal in Pakistan, no reasoning was given. 

All this is compounded by a virtual absence of legal representation in military tribunals. From what is available in the public domain, Jadhav was purportedly given legal representation by a military officer. It completely defies reason as to how a military officer who is a part of the military establishment can fearlessly advocate the case of his client in a military tribunal where the highest presiding officer is the Chief of Army Staff.  The resolution of the Lahore Bar Association that it would suspend the membership of any person who extends his/her services to Jadhav also flies in the face of Article 10 A of the Pakistan Constitution, which purports to recognise the right of every accused to a reasonable defence. 

Justice should not only be done but seem to be done is an often repeated legal aphorism. Apart from the breach of the provisions of consular access under the Vienna Convention, the International Court of Justice may also be called upon to determine whether the very practice of conducting farcical military trials is against the principles of public international law. 

The author is Additional Advocate General, Karnataka, and a practicing advocate in the Supreme Court. Views are personal.