June 11th, 2021
By Ahmed Saeed
Senior lawyer Salman Akran Raja says that a bill passed by the National Assembly on June 10 to provide a right of appeal to foriegners, including Kulbhushan Jadhav against his conviction, was completely in line with the judgment of the International Court of Justice (ICJ).
“It is complete nonsense to say that the bill is aimed to give National Reconciliation Ordinance (NRO) to Kulbhushan Jadhav. In fact, it was the right step to complete the country’s international obligation otherwise Pakistan could have faced legal repercussions at international forums,” Raja adds.
He also says that the bill is not person-specific and it will apply to all those persons whose cases fall under Article 36 of the Vienna Convention of Consular Relations of24 April 1963. In May 2020, the government promulgated an ordinance titled “the International Court of Justice (Review and Reconsideration) Ordinance” to comply with the ICJ verdict in Jadhav’s case.
The ordinance allowed High Court’s to review and reconsider the appeals of foreign nationals who are aggrieved in respect of rights under Article 36 of the Vienna Convention or where the International Court of Justice passes an order in respect of the Convention. Later, the government tabled the ordinance as a bill in the National Assembly.
Opposition Objections on the Bill
Yesterday, the government passed the bill despite resistance from opposition benches. The law minister Farogh Naseem while presenting the legislation said that if the bill was not adopted by the parliament, the country could face sanctions for not complying with the ICJ’s verdict.
“India wants us to do what you (the opposition) are saying,” said the law minister amid the opposition members chanted slogans “traitor, traitor”. The opposition protested against the bill and said that the move is a part of the PTI-led federal government to provide relief to the Indian spy associated with Indian spy agency Research and Analysis Wing (RAW) who was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism. He was subsequently sentenced to death in 2017.
On April 10, 2017, Army Chief Gen Qamar Bajwa had endorsed the death penalty for Jadhav. In June 2017, the Indian spy had filed a mercy petition against the death penalty, in which he again confessed to his involvement in terrorist activities.
India moved the ICJ which had ordered a stay in his execution through an interim order in 2019.
Later that year, in its detailed verdict the ICJ ruled that Jadhav be allowed consular access immediately and asked Pakistan to ensure “effective review and reconsideration of his conviction and sentences”.
India refused to file a review petition
To comply with the order, the federal government on May 20, 2020, promulgated the ordinance which set the period of 60 days to file a review before the high court. But the Kulbhushan Jadhav or the Indian High Commission in Pakistan did not file the review petition under the stipulated time period.
Upon the expiration of the time period, the federal government through the Ministry of Law and Justice on July 22, 2020, filed a review petition in the Islamabad High Court (IHC).
The Judge Advocate General (JAG) branch of General Headquarters (GHQ) and the Ministry of Defence were made parties in the petition. The petition stated that the IHC should appoint a counsel to review and reconsider the verdict of the military court per the decision of the ICJ.
But India refused to hire a Pakistani counsel for their national and demanded that an Indian lawyer or a Queen’s counsel should be appointed for Jadhav to ensure a free and fair trial in the case.
But Pakistan denied India’s demands stating that under the rules only those lawyers can be only a lawyer that holds a license of the respective court would be able to represent the Indian spy. The case is still pending before the larger bench of IHC.