The Islamabad High Court (IHC) – while hearing the government’s plea to appoint a counsel for convicted Indian spy Kulbhushan Jadhav – has noted that submission to the jurisdiction of any court is “quite distinct” from appearing before a court to assist it in a matter.
At the last hearing of the case, Attorney General for Pakistan (AGP) Khalid Javed Khan had informed the court that India has contended that appearance of its consul before a Pakistani court to defend Jadhav would amount to submission to the jurisdiction of the court and will violate its “sovereign immunity”.
An IHC larger bench – comprising Justice Athar Minallah, Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb –later issued a three-page written order stating that “at this juncture, the court is conducting proceedings only to work out the way forward to implement the judgment of the International Court of Justice (ICJ)”.
Jadhav, a self-confessed operative of Indian Research and Analysis Wing (RAW), was arrested on March 3, 2016 during a counter-intelligence operation in Balochistan. A Field General Court Martial in Pakistan sentenced Jadhav to death on April 10, 2017 for fuelling terrorism in Balochistan and Karachi.
India later moved the ICJ which 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 ordered Pakistan to suspend the execution.
It ruled that Pakistan would have to review the entire process of the trial and conviction of Kulbhushan Jadhav and provide India with consular access. However, India has refused to defend Jadhav at the IHC where Pakistan has filed an appeal against its own military court’s order.
The IHC said: The said aspect of the matter – that the IHC is only trying to figure out a way to implement the ICJ order – needs to be brought to the attention of India so that it may enter appearance and express its reservations about procedure and methodology for implementation of the judgment.
“The present proceedings are being conducted to ensure that Commander Jadhav is provided a fair opportunity to defend himself in the review proceedings to be carried out as ordered by the ICJ.
“In view of the foregoing, the government of Pakistan shall make another effort to communicate with the government of India regarding the purpose of the instant proceedings and ensure presence before the court,” the order noted.
The bench gave India another chance to appoint a counsel for Jadhav by June 15, the date on which the court will resume hearing of the case.