Kulbhushan Jadhav case: IHC asks govt to give 'another chance' to India to appoint lawyer

ISLAMABAD: The Islamabad High Court (IHC) on Monday asked the federal government to offer India and convicted Indian spy Commander Kulbhushan Jadhav another opportunity to appoint a lawyer for filing a review petition against his death sentence.

A two-member special bench of IHC Chief Justice Athar Minallah and Justice Miangul Hassan Aurangzeb heard the govt's plea for appointment of a legal representative for Indian spy Kulbhushan Jadhav.

"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 Jadhav and the Indian govt to arrange legal representation and to file a petition," said the order.

The federal government was directed to 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 Convention, read with the statutory right made available under the Ordinance of 2020, so as to give effect to the judgment of the International Court."

The court said, "We expect the right to a fair trial of Commander Jadhav will be respected and utmost care will be exercised while making statements, verbal or in writing, reporting by print and electronic media to ensure that the principles highlighted by the august Supreme Court are not breached."

The bench restrained from appointing a counsel on behalf of Commander Jadhav and advised the govt to extend an opportunity to Commander Jadhav and the Indian govt for arranging legal representation in terms of Article 32(1)(c) of the Convention and in accordance with the applicable laws.

"We note that the International Court has granted a continued stay of execution as "an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr Jadhav," the bench observed in the order.

The bench appointed Abid Hassan Manto, Hamid Khan, senior advocates of the Supreme Court, former presidents of the Supreme Court Bar Association, Makhdoom Ali Khan, and former Attorney General for Pakistan as amici curiae for the legal assistance.

Attorney General for Pakistan Khalid Jawed Khan gave a detailed background of the case and the events which led to the filing of the petition.

He said the Indian government instituted proceedings before the International Court of Justice (ICJ), which stayed the execution of the sentence.

In response to a court query regarding the object and purpose of the promulgation of the International Court of Justice (Review and Reconsideration) Ordinance, 2020, the AGP explained that it was to give effect to the judgment of the ICJ pronounced on July 17, 2019.

The attorney general argued that Commander Jadhav and the Government of India were informed regarding the promulgation of the Ordinance of 2020 but they had not shown willingness to avail the statutory remedy, which had been specifically made available to fulfill the requirements set forth by the International Court in its judgment.

He further stated that the Indian government had informed that it had engaged a counsel but later, he was not given power of attorney, so that necessary documents could be handed over to him.

The AGP maintained that since the time prescribed for availing the statutory remedy was expiring, therefore, this petition was filed in order to give effect to the judgment of the International Court.

He asserted that the Indian government was requested to avail the statutory remedy but the latter had not demonstrated a bonafide serious intent in that regard.

The court said that through this petition, the State of Pakistan had sought the review and reconsideration of the conviction and sentence of Commander Kulbhushan Sudhir Jadhav, handed down by the Field General Court Martial on conclusion of the trial conducted under the Pakistan Army Act 1952, read with the Official Secrets Act 1923. Jadhav was arrested and tried on charges of being involved in espionage and terrorism activities.

He was sentenced to death.

The appeal preferred against the conviction and sentence was dismissed by the Military Appellate Court.

The IHC bench said with the able assistance of the attorney general they had carefully gone through the provisions of the Ordinance 2020.

It appears 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 have been attended to.

Copyright Business Recorder, 2020