Deep state justice
by R Hariharan on 21 Apr 2017 12 Comments

The death sentence handed out to Kulbhushan Jadhav, a retired Indian naval officer, by a Pakistan Field General Court Martial (FCGM) on charges of spying and sabotage activities in Karachi and Balochistan has sent shock waves across the country. Even the staid Karachi newspaper Dawn, not usually given to hyperbole called the death sentence “unexpected,” while reporting the political reaction to the sentence.


According to Pakistan, Jadhav was arrested during a counter intelligence raid by security forces near the border area of Chaman in Balochistan when he illegally entered from Iran on March 3, 2016. He was using an Indian passport in the name of Mubarak Patel. 


He was tried under Section 59 of the Pakistan Army Act and Section 3 of the Official Secrets Act of 1923, charged with spying for India, working against Pakistan’s integrity, sponsoring Balochi terrorism in the country and attempting to destabilise the state. 


India has clarified that Jadhav, prematurely retired from the navy in 2003, had established a cargo business in Chabahar port in Iran since then. Media reports have alleged that he was kidnapped from Iran by Taliban and sold to Pakistan authorities. 


The entire prosecution and trial process, starting from the arrest of Kulbhushan to the trial and award of death sentence by a military court, has been shrouded in secrecy. The legality of the trial by military court itself is questionable. In January 2015, Pakistan national assembly reluctantly approved the 21st constitutional amendment that paved way for the military courts, after the then Army chief General Raheel Sharif pressurized the members. They are a testimony to the hold Pakistan army has over the civilian authorities.  


Pakistan Supreme Court ruled in August 2015 that secret military courts were legal and could pass death sentences on civilians. Nine military courts have been constituted to try such cases. By end December 2016, the military courts have handed out death sentence to 161 persons accused of terrorism.


Pakistan’s case is built upon information gleaned from his interrogation and on the basis of Jadhav’s “video confession” recounting his work for India’s external intelligence arm - the Research and Analysis Wing (RAW) - from 2013. The dubious “confession” from Uzair Baloch, a notorious Lyari criminal gang leader of Karachi, who was apprehended by the Rangers in Karachi in January 2016, states he was in contact with Jadhav to create law and order situation in Karachi.


The Jadhav case appears to be tailored to prove Pakistan’s claim of Indian involvement in three key areas: financial and logistic support to Baloch insurgents, collusion with Haji Baloch, who provided financial and logistic support to Baloch separatists and the Islamic State in Karachi, and triggering sectarian violence in Karachi and Sindh. 


Sartaj Aziz, advisor on foreign affairs to the Pakistan prime minister, has said that Jadhav had been held responsible for terrorist activities that include sponsoring attacks in Gwadar and Turbat, attacks on a radar station and civilian boats in the sea opposite Jiwani Port, funding subversive secessionist elements through hawala in Balochistan, sponsoring explosions in gas pipelines and electric pylons in Sibi and Sui areas in Balochistan, sponsoring IED explosions in Quetta, sponsoring attacks on Hazaras in Quetta and Shias en route to Iran and back, and abetting anti-state elements in attacks against law enforcement agencies in Balochistan during 2014-15 killing many civilians and soldiers.


The Jadhav case has come handy for Pakistan to counter Prime Minister Narendra Modi’s efforts to internationally isolate Pakistan for sponsoring terrorist attacks against India. In April 2016, Pakistan briefed foreign diplomats in Islamabad on Jadhav’s arrest and his involvement in terrorist activities. Pakistan also shared the information with the US and the UK. Prime Minister Modi in his Independence Day address on August 15, 2016 brought the focus on human rights violations in Balochistan. The Jadhav case would buttress Pakistan’s argument that India was colluding with Balochi separatists in the state.


India has pointed out a lot of discrepancies in Pakistan’s statement on the case. After the death sentence was announced, India summoned Pakistan High Commissioner in New Delhi and handed over a demarche. It said “If this sentence against an Indian citizen, awarded without basic norms of law and justice, is carried out, the government and the people of India will regard it as a case of premeditated murder.” On April 14, India asked for a copy of the formal charge sheet filed against Jadhav; Indian High Commissioner in Islamabad has also made a request for consular access for the 14th time.


Jadhav has 40 days to file an appeal against the FGCM verdict in the military court of appeal. If that fails, he would have the opportunity to seek mercy from the army chief and Pakistan’s president. Of course, if he feels the due process of law was not observed during the trial and his fundamental rights were affected, he could approach a high court. But the Lahore High Court Bar Association (LHCBA), on April 14, warned against taking up the case of Jadhav. It said action would be taken against any lawyer who dares to obey its order.


Army channels of appeal are unlikely to be productive if we go by the statements of Pakistan army chief. The corps commanders’ conference, the Deep State of Pakistan, has unanimously maintained that no compromise would be made on the death sentence awarded to Kulbhushan Yadav. 


Presumably, the only way to save to Jadhav would be through bilateral parleys. But given the dismal state of relations between the two countries at present, it could be a long haul before the contentious issue is resolved.


Will it be possible to swap Jadhav for a Pak spy as Gary Powers, the US air force spy pilot shot down over Soviet Union, was exchanged for Soviet spy Col Abel who was arrested in the U.S.? The disappearance of Lt Col Muhammad Habib Zahir, a retired officer of the Pakistan army, while visiting Lumbini in Nepal, recently has given rise to a lot of media speculation that Indian intelligence might have kidnapped him for a tradeoff for Jadhav.


International espionage cases are always murky and messy because they are full of half-truths and lies. Only the coming days will tell how both India and Pakistan tackle this issue. The defusing of a potentially explosive issue is likely to test the leadership skills in both the countries.


The author, a retired MI officer, served as head of Intelligence of the Indian Peace Keeping Force from 1987 to 90. He is associated with the Chennai Centre for China Studies.


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