ISLAMABAD: The Islamabad High Court (IHC) has observed that the case of convicted Indian spy, Commander Kulbhushan Jadhav, has international ramifications and urged the Indian government to cooperate with the legal proceeding as this concerns the “life of a human being”.
A three-member bench of the IHC comprising Chief Justice Athar Minallah, Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb on Wednesday resumed hearing of the petition filed by the Ministry of Law and Justice seeking appointment of lawyer for the Indian Navy Commander Jadhav of the Research and Analysis Wing (RAW).
Appearing before the court, Attorney General Khalid Jawed Khan said in order to comply with the International Court of Justice’s (ICJ) decision, Pakistani government had drafted the law to provide consul access to the Indian spy. However, he argued, the Indian government deliberately avoided to join court’s proceedings and was raising objections to a trial before a Pakistani court and had declined to even appoint a counsel for the IHC’s proceedings saying it “is tantamount to surrendering sovereign rights”.
“It appears the Indian government has raised the objection not for non-implementation of ICJ’s verdict but to engineer default on the basis of which it would [try to] justify going to the ICJ again,” the attorney general said.
IHC chief justice expresses surprise over question of legitimacy by Indian HC that secured release of five prisoners from same court
Pakistan had promulgated the law to enable RAW agent Jadhav to avail himself of the statutory remedy provided under the ICJ (Review and Reconsideration) Ordinance, 2020 that Pakistani government issued last year to comply with ICJ’s order. However, the Indian government termed the law an ‘illusion of remedy’, not a proper remedy.
The chief justice expressed surprise that the Indian High Commission in Islamabad, which had approached the IHC seeking release of five prisoners and had secured decision in their favour, was questioning the legitimacy of the same court.
He observed that despite negative remarks of the Indian government about Pakistani courts, the IHC was considering the Jadhav case on humanitarian grounds to ensure fair trial of the convicted spy. “We are not against sovereign immunity of the Indian government but they should at least tell us how we would proceed to implement the ICJ’s decision,” the chief justice remarked.
The attorney general read out two notes verbale of the Indian government related to Commander Jadhav and said India had rejected the suggestion [of the IHC] of appearing before the Pakistani court.
The chief justice asked him to remind the Indian government that appearing before the court did not mean waiver of sovereignty and the court had acknowledged their sovereign rights.
At one point, when Justice Aurangzeb remarked that if Indian government would not respond, the court might dismiss the petition, the attorney general argued: “This is exactly what the Indian government wants.”
The attorney general believed if the matter “was not pending before the IHC, the Indian authorities would have filed a contempt of court [petition] against Pakistani government with the ICJ for ‘non-compliance’ of latter’s decision”.
Hamid Khan, amicus curiae in this matter, said Jadhav had been convicted of terrorism. He was of the opinion that the government should not have introduced a Jadhav-specific law. The AG replied that the law was promulgated to comply with the ICJ direction.
The court asked the attorney general to take up the matter with the Ministry of Foreign Affairs for its onward communication with the Indian authorities.
Further proceedings have been adjourned till June 15.
Published in Dawn, May 6th, 2021