Appointment of lawyer: Govt asked to give another chance to Jadhav

ISLAMABAD: The Islamabad High Court (IHC) on Thursday asked the federal government to extend another opportunity to India for appointment of a lawyer to defend Kulbhushan Jadhav, who is facing death sentence.

The special larger bench of the IHC comprising Chief Justice Athar Minallah, Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb heard the government's plea seeking the appointment of a legal representative for Indian spy Kulbhushan Jadhav for filing his review petition against his death sentence.

Attorney General for Pakistan Khalid Jawed Khan informed the court that in compliance with the court direction the officials had met Commander Jadhav.

The Indian spy was given a detailed briefing, particularly regarding his right to avail the statutory remedy provided under the International Court of Justice (Review and Reconsideration) Ordinance, 2020.

The AGP stated that Jadhav was also informed about the judgment of the International Court of Justice and his rights under Article 36 of the Vienna Convention on Consular Relations.

Khalid Jawed submitted that the government officials informed him that Commander Jadhav has reiterated his earlier stance and has preferred to pursue the remedy of clemency instead of invoking his right under the Ordinance of 2020.

He further said that the Indian government was also duly informed regarding the proceedings of this Court held on 03-08-2020, but the latter's response was awaited.

The court also enquired from the IHC Registrar whether an enrolled counsel had filed a power of attorney on behalf of the Government of India.

The response was in negative.

The IHC bench noted that the federal government in order to meet its obligations regarding giving effect to the International Court's judgment, pronounced on July 17, 2019, has specifically promulgated the Ordinance of 2020.

It added the proceedings before us are aimed at ensuring that the judgment of the International Court is given effect.

"We are mindful of the emphasis laid down by the International Court, in its judgment, relating to the need for the review and reconsideration to be effective."

"We are of the opinion that these proceedings and judicial review, on the basis of the judgment of the International Court, may not be meaningful and effective if Commander Jadhav and the Government of India decide not to exercise the course of action highlighted in the judgment of the International Court," observed the court.

The court stated protecting the right to a fair trial of Commander Jadhav is of paramount importance to ensure that the review and reconsideration is not only effective but is also seen to be such.

It further said, "We have no reason to doubt, as stated by the attorney general, that the officials of the Government of Pakistan have complied with our direction by informing Commander Jadhav regarding his right to a fair trial and his rights under Article 36 of the Convention."

The IHC bench maintained that it is unquestionable that the right to a fair trial is the foundation of the rule of law and our criminal justice system.

The essence of fair trial is to assure to every party that he or she would be treated fairly and justly by a judicial forum, which is impartial and independent.

In the case in hand, Commander Jadhav is the most crucial stakeholder followed by the Government of India.

It continued that the judgment of the International Court does not contemplate proceedings for review and reconsideration if Commander Jadhav and/or the Government of India are not inclined or willing to avail the remedy specifically provided through the enactment of the Ordinance of 2020.

"It appears to us that the effectiveness of these proceedings are dependent on the willingness of Commander Jadhav and the Government of India to avail the statutory remedy provided under the Ordinance of 2020. If both choose to distance themselves from these proceedings, then questions would arise regarding the validity of the petition filed by the Government of Pakistan under the Ordinance of 2020 and the status of compliance with the judgment of the International Court," ruled the bench.

It further said that the choice of means was left to be decided by the Government of Pakistan and the latter, in compliance, has enacted the Ordinance of 2020.

The obligation of the Government of Pakistan, prima-facie, appears to be confined to "providing" effective review and reconsideration.

The court raised questions; "What if Commander Jadhav, exercising free will, or the Government of India decide not to pursue the statutory remedy provided for review and reconsideration? What then would be the status of compliance with the judgment of the International Court?"

It said, "In order to remove any doubt, and to fulfill the requirements of a fair trial, we feel that another opportunity ought to be extended to the Government of India to consider taking appropriate measures so as to ensure effective compliance with the judgment of the International Court."

The IHC bench added that it was also important to give an assurance to Commander Jadhav that his rights, particularly the right to a fair trial, was an integral factor of an effective review and reconsideration for a meaningful compliance with the judgment of the International Court.

"We, therefore, yet again restrain ourselves from proceeding in the matter in hand," added the court.

To ensure effective review and reconsideration so as to give effect to the judgment of the International Court, the IHC bench directed that the attorney general shall ensure that copy of this order is provided to Commander Jadhav, the Government of Pakistan shall once again convey the orders passed in this petition to the Government of India to enable the latter to consider taking appropriate measures in order to ensure compliance with the judgment of the International Court.

The Registrar IHC ordered to send to the learned amici curiae, appointed vide our last order, copies of the petition and documents placed on the record, while they are expected to assist the court on the status of compliance with the judgment of the International Court in the event that Commander Jadhav or the Government of India decide against availing the remedy provided under the Ordinance of 2020.

The case was adjourned until October 6.

Copyright Business Recorder, 2020