ISLAMABAD: While hearing government plea on Monday, the Islamabad High Court (IHC) has suggested that the government should offer Indian national Kulbhushan Jadhav (for whom the court used the word spy) another opportunity to appoint a lawyer. Later, the court adjourned the hearing till September 3, 2020.
A two-member special bench comprising IHC Chief Justice Athar Minallah and Justice Miangul Hassan Aurangzeb heared the government’s plea seeking the appointment of a legal representative for the Indian spy.
Attorney General of Pakistan (AGP) Khalid Javed Khan appeared before the court on behalf of the government. He stated before the court that Jadhav was arrested on March 3, 2016, for entering Pakistan illegally. He told the court that Jadhav confessed to his links with RAW, and his involvement in espionage and terror activities in Pakistan. Jadhav was convicted by a military court that sentenced him to death in 2017, and Jadhav’s appeal for mercy is pending before the chief of army staff, said the AGP.
According to the AGP, in 2017 India approached the International Court of Justice and claimed that Jadhav was denied consular access. India accused Pakistan of violating the Vienna Convention and denying consular access to Jadhav, said the AGP. The ICJ issued a restraining order on the death sentence that is applicable till date, he added.
In July 2019, the ICJ ruled that Pakistan must grant consular access to India without any delay and at the same called for the ‘effective review and reconsideration’ of the Jadhav case. At the court’s inquiry, the AGP said that Pakistan is abiding by all international laws. Pakistan has never violated international laws, he said, adding that an ordinance has been issued in compliance with the ICJ’s ruling. If the accused cannot find a lawyer for himself, the court provides a lawyer for him to protect his rights, said the AGP.
“Now that the matter is before the IHC, why not give India and Jadhav another chance to appoint a lawyer for the arrested Indian commander,” remarked the court. The AGP said that the government is ready to make the offer again, and will contact India through the Foreign Office.
In view of the ICJ judgment, the federal government had promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020 on May 20 for an effective review of the case. The ordinance read that a foreign national – either themselves or through their authorised representative or through a consular officer of mission of their country – might file a petition before a high court for a review and reconsideration in terms of Section 3 of an order of conviction/sentence of a military court operating under the Army Act 1952.
It is also stated that the petition for review and reconsideration could be filed within 60 days of the promulgation of the ordinance. Since the ordinance was issued on May 20, the deadline expired on July 20. In its petition before the IHC, the government has moved the IHC to appoint a counsel to review and reconsider the verdict of the military court in accordance with the decision of the ICJ. The Judge Advocate General (JAG) branch of General Headquarters (GHQ) and the Ministry of Defence have been made parties in the petition.
The government has further stated that Jadhav refused to file a review petition or an application to reconsider the verdict, adding that he did not have independent sources to hire counsel to represent him. On July 16, Pakistan offered India third consular access to Jadhav as the day before Indian diplomats walked out of the meeting without hearing him.
The High Court appointed three leading lawyers as ‘amici curiae’ and asked Attorney General Khalid Jawed Khan to once again seek response from the Indian government and the spy regarding appointment of counsel for his defence. The IHC division bench warned against issuing unnecessary statements in this case as the court observed “everyone must keep in mind right to fair trial while issuing statement related to Jadhav”.
“We appoint Mr Abid Hassan Manto, Mr Hamid Khan, Senior Advocates of the Supreme Court and former presidents of the Supreme Court Bar Association, and Mr Makhdoom Ali Khan, Senior Advocate Supreme Court and former Attorney General of Pakistan, as amici curiae for our legal assistance in general and, in particular, to ensure that the judgement of the International Court is effectively implemented,” the court order said.
AG Khan gave an undertaking that his office would issue advice to the government in this regard. He said the government had committed for his fair trial despite the fact that Jadhav had confessed to and convicted of committing heinous crimes of espionage and terrorism in Pakistan.
“Jadhav is taken care of, he is in good health,” the attorney general said. He said that in compliance with the stay order issued by the International Court of Justice (ICJ), the government did not execute the convict. The stay order would remain intact till the time a petition from or on behalf of Jadhav was filed before the IHC, he added.