The Hague: India on Monday tore through the ‘opaque proceedings’ of Pakistani military courts which try civilians against the international norms, saying the judges, who tried Indian national Kulbhushan Jadhav, are not required to have judicial or legal training or even a law degree.
India’s plea at the International Court of Justice came as the top UN court began a four-day public hearing in the case of Jadhav, 48, who was sentenced to death by a Pakistani military court on charges of espionage. Ex-solicitor general Harish Salve, who represented India, said that a foreign detainee has the right to life, the right to a fair trial and an impartial judiciary.
“However, Pakistan has sentenced 161 civilians to death in their military courts in opaque proceedings in the last two years,” Salve said.
International standards require that military courts like all courts must be independent, impartial and competent, and must respect minimum guarantees of fairness, he said.
“Pakistani military courts are not independent and the proceedings before them fall far short of national and international fair trial standards.
“Judges of military courts are military officers who are part of the executive branch of the government and do not enjoy independence from the military hierarchy,” Salve said.
He claimed that the judges of the Pakistani military courts are not required to have judicial or legal training or even a law degree, and they do not enjoy any security of tenure which are prerequisites of judicial competence and independence.
“Jadhav’s trial by a military court hopelessly fails to satisfy even minimum standards of due process and should be declared unlawful,” he said.
Pakistan uses military courts to try civilians, and this was done by amending Pakistan’s Constitution, Salve said.
“The military courts have been reinstated even after European courts (International Commission of Jurists) have expressed their reservations with the idea. They have emphasised the idea that military courts should only restrict to military trials, and civilians should not be tried in them at all,” Salve said.
India submits that military courts of Pakistan cannot command the confidence of this court and should not be sanctified by a direction to them to review and reconsider the case, he said.
“I would invite this court to keep in mind the relief to be granted in the backdrop of the fact that his (Jadhav’s) trial has been conducted by a military court.
“Pakistan has known, willfully and brazenly violated Article 36 of the Vienna Convention. Honourable judges, I respectfully submit that consequences must follow,” Salve said, adding that the military court trial is unsatisfactory.
The military courts were first set up in January 2015 for two years for speedy trial of militants after the 2014 Peshawar school attack that killed nearly 150 school children. Their tenure was extended for another two years in March 2017.
The Pakistan Tehreek-e-Insaf government of Prime Minister Imran Khan has shown a willingness to give another term to the army-run courts but it needs the support of the opposition as the courts were created after an amendment in the Constitution which can be done by the support of two-thirds of lawmakers.
In the four years, they have been in operation, military courts have convicted 617 people for terrorism-related offences, out of which 346 people have been sentenced to death and 271 people have been given prison sentences. At least 56 people have been hanged. Only four have been acquitted, according to Pakistani media reports.
The primary concern of critics was the mystery surrounding military court trials: no one knows who the convicts are, what charges have been brought against them, or what the accused’s defence is against the allegations levelled.