Islamabad has thwarted New Delhi’s attempt to frustrate the Islamabad High Court proceedings on the compliance of the International Court of Justice (ICJ) directives in the case of Indian spy Kulbhushan Jadhav.
Despite giving a legal option through the promulgation of the International Court of Justice (Review and Reconsideration) Ordinance, 2020 on May 20 last year, neither the spy, nor the Indian High Commission in Pakistan were willing to join the IHC proceedings for reviewing or reconsideration of the conviction awarded by a military court to Jadhav.
To solve the problem of the maintainability of the case pending in the high court after their unwillingness, the federal government in a recently passed law – The International Court of Justice (Review and Reconsideration Act 2021 – inserted that "in default whereof, the secretary ministry of law and justice in an appropriate case may file a petition before the court for review and reconsideration".
This line was not present in the ordinance on the subject. Now, it has been added to the bill, which was passed by a joint sitting of parliament last week.
The new law states that any plea already filed or pending will be treated as a “petition filed” under the new section.
Senior lawyers believe that the new law will cover the question of the maintainability of case pending in the IHC wherein both the convict and the Indian High Commission are unwilling to join the proceedings.
Sources told The Express Tribune that instead of nominating a counsel itself, the government might request the high court to appoint a lawyer to plead the case on behalf of Jadhav soon.
In response to a media query on the Pakistani law, the spokesperson for the Indian ministry of external affair, Shri Arindam Bagchi, said his government had seen reports of Islamabad enacting into law the earlier ordinance that was “ostensibly enacted to bring into effect the judgment of the ICJ in the Jadhav case”.
“Nothing could have been further from the truth. As stated earlier, the ordinance did not create the machinery for an effective review and reconsideration of Shri Jadhav’s case as mandated by the judgement of the ICJ,” he added.
In July 2019, the ICJ had disappointed India by neither annulling Jadhav’s conviction nor referring his matter for retrial.
Instead, it directed Pakistan to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting ‘appropriate legislation’.
The ICJ also believed that this obligation could be carried out in various ways and left the choice of means to Pakistan.
It maintained the stay on the spy’s execution till ‘effective review’.
The court pointed out that respect for principles of fair trial was of cardinal importance in any review and reconsideration, and that, in the circumstances of the present case, it was essential for the review and reconsideration of the conviction and sentence of Jadhav to be effective.
The ICJ also noted that violation of rights set forth in article 36 and its implications for principles of fair trial should be fully examined and properly addressed during the review process.
“In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration,” it added.
Soon after the ICJ verdict, Pakistan’s legal minds evolved options regarding its implementation. First, consular access was given to Jadhav.
Several ideas were also discussed on how to pursue an effective review.
The attorney general for Pakistan’s office submitted a proposal on the promulgation of an ordinance to implement the ICJ directives. Subsequently, the International Court of Justice (Review and
Reconsideration) Ordinance, 2020 was promulgated on May 20 last year.
The ordinance read that a foreign national – either themselves or through their authorised representative or through a consular officer of mission of their country – might file a petition before a high court for a review and reconsideration in terms of Section 3 of an order of conviction or sentence of a military court operating under the Army Act 1952.
It also stated that the petition could be filed within 60 days of the promulgation of the ordinance.
The ordinance further read that in deciding the petition, the court would examine whether any prejudice had been caused to the foreign national in respect of their right to defence, evidence and principles of fair trial due to the denial of consular access according to VCCR.
If any difficulty arises in giving effect to any provision of the ordinance, the president may pass an order as may appear to him to be necessary for the purpose of removing it.
Jadhav was informed about the promulgation of the ordinance and his legal right for review of the military court verdict against him in line with the ICJ judgment.
However, he refused to avail the legal remedy and requested consideration for his mercy plea, which is already pending before the army chief. Later, Pakistan invited India to avail the legal remedy until July 20, 2020.
The federal government moved the IHC for the appointment of a state counsel for Jadhav to implement the ICJ verdict on his conviction.
Since July last year, a three-judge IHC bench led by Chief Justice Athar Minallah is hearing the matter wherein India’s High Commission was given opportunity to engage counsel for the convicted spy.
The IHC also appointed senior lawyers Abid Hassan Minto, Hamid Khan and Makhdoom Ali Khan as amicus for legal assistance in general and, in particular, to ensure that the judgement of the International Court was effectively implemented.
AGP Khalid Jawed Khan rightly pointed out before the IHC that India had defended its eight other convicted citizens in the same court.
“If the trial of Jadhav [by the IHC] is a violation of Indian sovereignty then why is the trial of eight other prisoners not an equal violation,” he noted.
Interestingly, the IHC had ordered the release of all eight Indians.
However, India is unwilling to plead the Jadhav case before the IHC.