The Legal Position on FGCM in Pakistan Army Act & Kulbhushan Yadav Case
The Trial of
Kulbhushan Yadav by a Field General Court Martial (FGCM) by the Pakistan Army is
illegal in terms of the Pakistan Army Act 1952. This cannot be overridden by
the Amendment to the same for establishment of military courts in Pakistan
which has been recently extended for a period of two years.
Indian
authorities need to take up issue diplomatically as well as through legal
channels in this case the Supreme Court in Pakistan on priority given the gross
injustice and unfair trial.
Section 97 - field
general Court martial shall have power to try any person subject to this Act
for any offence made punishable therein, and to pass any sentence authorised
by this Act. Note as Kulbhushan Yadav is an Indian civilian he is not subject
to Pakistan Army Act, thus the trial is invalid
Section 104. Challenges.
(1) At all trials by general, district or field general Court martial, as soon
as the Court is assembled, the names of the president and members shall be
read over to the accused, who shall thereupon be asked whether he objects to
being tried by any officer sitting on the Court.
(2) If the
accused objects to such officer, his objection and also the reply thereto of
the officer objected to, shall be heard and recorded, and the remaining
officers of the Court shall, decide on the objection in the absence of the
challenged officer.
(3) If the
objection is allowed by one half or more of the votes of the officers entitled
to vote, the objection shall be allowed and the member objected to shall retire
and his vacancy may be filled in the prescribed manner by another officer
subject to the right of the accused to object.
(4) When no
challenge is made, or when challenge has been made and disallowed or the place
of every officer successfully challenged has been filled by another officer to
whom no objection is made or allowed, the Court shall proceed with the trial.
Section 123.
Power to confirm finding and sentence of field general Court martial. The
finding and sentence of a field general Court martial may be confirmed by the
convening officer or 2[, if it is not practicable for the convening officer to
do so by reason of his absence on leave or otherwise or the convening officer
so directs,] by an authority superior to him.
Section 131.
Remedy against finding and sentence of Court martial.___(1) Any person subject
to this Act who considers himself aggrieved by the finding or sentence of a
general, field general or district Court martial may submit a petition, before
confirmation of such finding or sentence, to the officer empowered to confirm
it and, after confirmation, to the 1[Federal Government], or the 2[Chief of the
Army Staff] or to any 3[prescribed officer who is superior in command to] the
one who confirmed such finding or sentence.
“An
extraordinary situation and circumstances exist which demand special measures
for speedy trial of certain offences relating to terrorism, waging of war or
insurrection against Pakistan and prevention of acts threatening the security
of Pakistan by any terrorist group using the name of religion or a sect and
members of such armed groups, wings and militia. There exists grave and
unprecedented threat to the integrity of Pakistan by raising of arms and
insurrection using name of religion or a sect by groups of foreign and locally
funded elements using name of religion or a sect who are to be severely dealt
with under the law. The Bill is designed to achieve the said objects”.
Mr Jadhav is not
a threat to Pakistan in any manner despite the so called confessional
statements that have been attributed to him in the past.
