ISLAMABAD: The Islamabad High Court (IHC) on Monday appointed leading lawyers as amici curiae in Indian spy Kulbhushan Jadhav case and asked Attorney General for Pakistan 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 comprising Chief Justice Athar Minallah and Justice Miangul Hassan Aurangzeb 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.
Court asks govt to again approach New Delhi, Jadhav for appointment of defence counsel
“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.
In response to the court query as to why the government did not file a petition under Article 199 of the Constitution and promulgated Jadhav-specific ordinance, the attorney general clarified that the ICJ had not set aside the verdict of the Field General Court Martial (FGCM) or the military’s appellate court and read out the relevant paragraph of the ICJ’s decision that highlighted non-compliance with Article 36 of the Vienna Convention that defines a framework for consular relations between sovereign states.
He said the ordinance did not enable the Indian spy to challenge his conviction but allowed him to file “review and reconsideration” appeal to examine observance of Article 36.
According to the attorney general, Indian Navy commander Jadhav entered Pakistan on March 3, 2016, and was arrested by the Pakistani authorities during a counter-intelligence operation in Mashkel, Balochistan.
He said Jadhav confessed to his association with the Indian intelligence agency, Research and Analysis Wing (RAW), and involvement in espionage and terror activities in different parts of Balochistan and Sindh and was awarded death sentence by a military court in April 2017.
AG Khan said the mercy petition of the spy was pending before the Chief of Army Staff and not yet decided since the ICJ had issued a stay order against the spy’s conviction. He said an appeal filed by Jadhav’s mother was also pending with the federal government.
According to the attorney general, the Pakistani government in compliance with the ICJ’s order was once again ready to provide consular access to Jadhav. He said the first consular access to the convict was given on September 2, 2019, second on June 16, 2020 and the third time the government arranged it for July 18, but the Indian High Commission did not avail the third access citing ‘flimsy’ reasons.
The ICJ reaffirmed that “it is a principle of international law . . . that any breach of an engagement involves an obligation to make reparation” and that “reparation must, as far as possible, wipe out all the consequences of the illegal act”.
The ICJ considered the appropriate remedy in this case to be effective review and reconsideration of the conviction and sentence of Jadhav. As per the court order, “the review and reconsideration of the conviction and sentence of Mr Jadhav, in order to be effective, must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined”.
The court noted that the High Courts of Pakistan could exercise review jurisdiction, however, it was not clear whether judicial review of a decision of a military court was available on the ground that there had been a violation of the rights set forth in Article 36, paragraph 1, of the Vienna Convention. “In this regard, the court takes full cognizance of the representations made by Pakistan. During the oral proceedings, the Agent of Pakistan declared that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”. The counsel for Pakistan assured the ICJ that the high courts exercise “effective review jurisdiction”, giving the Peshawar High Court decision in 2018 as an example.
The IHC observed that by giving a statutory right to a foreign national, in this case Commander Jadhav, to seek the review and reconsideration of the conviction and sentence handed down by a military court, the concerns recorded by the international court in relation to the limited scope of judicial review under Article 199 of the Constitution of the Islamic Republic of Pakistan had been attended to. The wide scope of the right of review and reconsideration and its effectiveness as a statutory remedy in the context of the judgment of the international court appeared to be obvious from the expressions used in Section 3 of the Ordinance of 2020, the court noted.
AG Khan said Commander Jadhav and the Indian government were informed regarding the promulgation of the Ordinance of 2020 but they did not show willingness to avail the statutory remedy, which had been specifically made available to fulfil the requirements set forth by the ICJ in its order.
He said the Indian government had claimed that it had engaged a counsel, Shahnawaz Noon, but the latter was not given a power of attorney so that necessary documents could be handed over to him. It was averred that since the time prescribed for availing the statutory remedy was about to expire, the petition was filed in order to give effect to the ICJ judgement.
The IHC bench observed: “We feel that in order to ensure the effectiveness of the review and reconsideration of the conviction and sentence of Commander Jadhav, a reasonable opportunity ought to be extended to the latter and the Government of India to arrange legal representation and to file a petition. We, therefore, at this stage restrain ourselves from appointing a counsel on behalf of Commander Jadhav and advise the Government of Pakistan to extend an opportunity to Commander Jadhav and the Government of India for arranging legal representation in terms of Article 32(1)(c) of the Convention and in accordance with the applicable laws.”
The court then directed the federal government to “once again inform Commander Jadhav regarding his rights under Article 36 of the Convention and the judgement of the International Court will also be brought to his attention. He shall be specifically informed regarding his right to avail the statutory remedy provided under the Ordinance of 2020 and to authorize the Government of India to arrange legal representation on his behalf…The Government of Pakistan shall communicate this order to the Government of India. Subject to the applicable laws, the latter shall be at liberty to make appropriate arrangements on behalf of Commander Jadhav in the context of the [Vienna] Convention.”
Published in Dawn, August 4th, 2020