The state’s top law officer has told the Islamabad High Court (IHC) that New Delhi is more interested in getting political leverage rather than the wellbeing of its spy Kulbhushan Jadhav as it has raised objections to Pakistan’s offer to give Jadhav an opportunity to challenge his sentence.
“India is not concerned about Jadhav’s life; it is more concerned about the political outcome of the case,” Attorney General for Pakistan (AGP) Khalid Javed Khan told an IHC bench, hearing the Ministry of Law's petition to appoint an attorney for the Indian spy.
Captain Jadhav, an operative of the Indian spy agency Research and Analysis Wing (RAW), was arrested from Balochistan in March 2016. A Field General Court Martial in Pakistan sentenced him to death on April 10, 2017 for fomenting terrorism in Balochistan and Karachi.
India later moved the International Court of Justice (ICJ) against the verdict and the ICJ on May 18, 2017 stayed the execution pending the final judgment on the case. On July 17, 2019, the ICJ rejected India's appeal for Jadhav's release but also ordered Pakistan to suspend the execution.
It also ruled that Pakistan will have to review the entire process of trial and conviction and provide India with consular access to the spy. This year Pakistan also promulgated ICJ (Review and Reconsideration) Ordinance, 2020 to comply with the ICJ verdict.
The AGP said the Ministry of Foreign Affairs on September 3 informed India about Pakistan’s steps taken in the light of the ICJ verdict. However, Pakistan on September 7 received Indian ‘note verbale’ raising objections to the measures taken by Islamabad.
“India has repeated its earlier position while raising four objections: first, it raised certain objections to the ICJ (Review and Reconsideration) Ordinance, 2020, saying it merely creates an illusion of remedy.
“Second, it said Pakistan did not allow meaningful consular access to Jadhav [as ordered by the ICJ].
“Third, it sought to pursue the case through the Queen’s Counsel practicing in England; and fourth, it said appearing before a Pakistani court would compromise its sovereign integrity,” the AGP said.
In his arguments, Khan said there was no question of waiver of sovereign immunity because the case will be pleaded through a counsel having power of attorney, adding that the ordinance does not talk about a procedure; that question is with the court and that’s what the court has to decide.
He said pleading the case through the Queen’s Counsel is against Pakistani as well as Indian laws, referring to Section 22 of the Legal Practitioners Act. “So, no question of the Queen’s Counsel coming here,” he said.
Commenting on the counselor's access, he said, it appears India is not concerned about Commander Jadhav and it was only creating a semblance of concern. He said it takes only five minutes to sign a power of attorney, adding that India can also come to the IHC if they need any documents.
Khan said Jadhav has already refused to avail the remedy and, apparently, India is also not keen to pursue the case. India is trying to develop a case that the ordinance that Pakistan introduced is not effective and that Pakistan failed to give counselor access to the spy in violation of the ICJ judgment.
Under the ordinance, the AGP said, one possibility was that Commander Jadhav pursued the case himself or through his authorized representative but this is not happening.
He added the federal government had approached the high court because Jadhav himself is not keen and India is deliberately avoiding to avail the opportunity.
He said Pakistan has fulfilled the obligations through promulgation of the ordinance but it has to go a little bit beyond that as the Constitution calls for providing fair trial to an accused. That is why the federal government approached the court for appointing a counsel, he said.
“We feel that we have extended enough opportunities to India and some reluctance is shown by India,” observed head of the larger bench Chief Justice Athar Minallah. “We are mindful that there is a life involved… right to fair trial is essential and that right has to be kept in mind in lieu of ICJ judgment.”
Justice Minallah asked the AGP if the court could appoint a lawyer on its own and what was the scope of it in light of the ICJ judgment. He asked the AGP to assist the court on the precedent law of the ICJ as it would enable the court to see how an effective review and reconsideration can be made in line with ICJ judgment.
Khan argued that the obligation of review and reconsideration pertains to the appointment of a counsel. Justice Minallah remarked that the main objective is the meaningful implementation of the ICJ verdict, adding it would be very important for the court to be assisted.
He said similar cases must have been decided by the ICJ and the AGP should assist the court if it can proceed without the presence of India and Commander Jadhav and can yet effectively review and reconsider. For that, he said, the court has to follow the case law developed by the ICJ itself.
“India can always come to this court, it will not compromise its sovereign immunity as the proceedings are arising out of the ICJ judgment,” Justice Minallah remarked.
Khan agreed to the notion, saying the Indian argument of integrity is a façade. “This argument has been raised to engineer a possible fault on Pakistan’s intention,” Khan said.
Justice Minallah, however, said: “We are for now not doubting India’s intention.” He said the court would need reference of the ICJ precedents so it could proceed accordingly.
At this point, Justice Aamer Farooq, a member of the bench, remarked: “This is about the right to life of Commander Jadhav and not the government of India.” Justice Minallah reiterated that “we have to ensure that commander Jadhav’s right to life is protected and judgment is also implemented”.
The court gave four-week time to AGP for providing assistance to the court regarding ICJ precedents
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