Adjudicator, Judge, Jury and Executioner!

Nilesh Kunwar
April 17, 2017 OPINION 358 Views
Adjudicator, Judge, Jury and Executioner!

For a government to be completely unaware of what its army is doing may sound bizarre. But there are always exceptions and Pakistan is one. So there is nothing unusual in the fact that while Pakistan Foreign Affairs Advisor Sartaj Aziz was telling the Senate Committee of the Whole House in December last year that the evidence provided in the case alleged RAW operative Kulbhushan Jadhav was “in our (Government’s) view was insufficient,” a military court was already more than half way through his trial!
Going by universally accepted conventions, announcement of the death penalty awarded to a foreign national is the prerogative of the government, but once again Pakistan is an exception when it comes to following this diplomatic protocol. Hence no one was surprised when it was Pakistan army’s media wing, the Inter Services Public Relations (ISPR) and not the Foreign Office or Interior ministry that announced the news of Jadhav having been awarded the death sentence. Surely this news must have come as much a surprise for the government of Pakistan (especially Sartaj Aziz), as it did for rest of the world.
By resolving to try Jadhav by a Field General Court Martial (FGCM) instead of a civil court as per international norms the Pakistan army has played the role of the adjudicator. Thereafter, the FGCM composed exclusively of army men played the role of judge awarding him the death sentence which has been confirmed by Pakistan army chief Gen Qamar Bajwa. But things don’t end here. Though Jadhav is entitled to appeal, he can only do so in the Military Appellate Tribunal (MAT). But by taking the decision that “no compromise shall be made on such anti-state acts,” the powerful coterie of corps commanders has prematurely played its part of a jury by sending out a clear message to the MAT on this case.
If the decision of the MAT is unfavourable, Jadhav can submit a ‘mercy petition’ to the army chief. But this provision in Pakistan Army Act (PAA) 1952, makes little sense as it is the army chief who has in the first place confirmed his death sentence. So to expect Gen Bajwa to reconsider his own decision is like expecting the sun to rise from the West. The last recourse for Jadhav would be to submit a ‘mercy petition’ to the President of Pakistan. But in a country where it is the army that disposes, to expect the President to overturn a sentence where the adjudicator, judge and jury are all men in uniform is being naïve!
Islamabad has tried its best to produce a convincing narrative to strengthen its allegations regarding Jadhav, but the army’s decision to keep his trial under wraps has only created a serious credibility crises. Think about it- if its assertions are true, then for the first time in history, the Pakistan army has in its hand physical proof of its repetitive claims of RAW fomenting terrorism inside Pakistan. This was something to celebrate and there couldn’t be any better way to do this than to hold an ‘open trail’. If this wasn’t possible due to some security related issues, even then Jahdav’s confessions in court regarding his role in masterminding grisly acts like the 2015 Quetta IED explosions and attack on Hazaras, killing of Shias enroute and back from Iran could have been regularly be made available to the media by the ISPR.
But this was not done and the question that is begging an answer is, ‘Why’?
Could the answer be found in Islamabad’s refusal to grant New Delhi counselor access to Jadhav? Why is Islamabad doing so and letting a finger of suspicion be raised against it when Jadhav has in his ‘confessional statement’ admitted being aware that “the various activities of these Baloch liberation and the RAW handlers go towards activities which are criminal, which are anti-national, which can lead to maiming or killing of people within Pakistan.” What adds more weight to this admission is that Jadhav has stated that his statement hasn’t been made “under any duress or pressure” but to “totally come clean out of this entire process.” People masterminding terrorist activities are seldom remorseful but here is an exception and so where is the problem of providing him counselor access?
Death penalty is most severe form of punishment and thus only awarded when the involvement of an undertrial in a crime meriting such retribution has been established beyond all doubts. Therefore, in all fairness to the Pakistan army, it would be fair to assume that the FGCM sentenced Jadhav to death on the basis of undeniable evidence against him that can easily pass the severest scrutiny. So why is there a hesitation in providing him counselor access? Even if Jadhav now claims to have given his confessional statement under duress, I’m sure Islamabad can expose his falsehood by confronting New Delhi with the available irrefutable evidence based on which the court martial handed him the death penalty!
Both the government of Pakistan and its army should have no doubts in their minds that whatever rationale is given to defend Islamabad’s decision of not providing New Delhi counselor access to Jhadav will not ever convince the world that the allegations of him being a RAW operative are true. If not India, some neutral international organisation with established credentials like the Red Cross needs to be given full access to Jadhav so that the veracity of him having voluntarily confessed being a RAW operative who sponsored secessionist and terrorist activities in Pakistan can be independently established!
If the Pakistan army claims that RAW is behind each and every terror related incident in the country than it has to provide irrefutable evidence. ‘Confessional videos’ of suspects may impress domestic audiences, but the international community only takes note of something when the evidence is conclusive. Probably that’s the reason why the UN hasn’t spoken a single word on the ‘Jadhav dossier’ that Islamabad handed over to it with much pomp and show months ago! But while the UN seems to be unimpressed by this dossier, for the Pakistan army the evidence it contains is more than adequate for sentencing Jadhav to death!
There seems to be something wrong somewhere!
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