Monday, April 10, 2017

The Legal Position on FGCM in Pakistan Army Act & Kulbhushan Yadav Case

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.

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