August 6th, 2021
By Rehan Piracha
Questioning the necessity of a legislation specific to Indian spy Khulbushan Jadhav, senators have called upon the government not to restrict the International Court of Justice (Review and Reconsideration) Bill to foreign nationals but must also extend it to Pakistani citizens by giving them right of appeal in military courts.
On August 4, the Senate standing committee on law and justice, chaired by Senator Barrister Ali Zafar, deliberated on the Jadhav-specific bill passed by the National Assembly.
According to a press release, the standing committee on law and justice recommended that the ICJ bill must not be restricted to foreign nationals but must also be extended to Pakistani citizens. “The bill has put Kulbhushan Jadav on a pedestal which is not conducive to the security environment of Pakistan,” the committee said in the statement.
A military court sentenced the Indian spy to death in April 2017. India approached the International Court of Justice (ICJ) which had issued a stay order against the conviction. According to the government, the legislation is necessary to meet the right of review to the Indian spy as directed in the ICJ ruling.
Speaking to Voicepk.net, one of the members of the committee, Senator Kamran Murtaza from Jamiat Ulema Islam said several members criticised the law ministry for introducing a Jadhav-specific law since the proposed legislation would enable him to challenge the military court’s verdict in the Islamabad High Court.
Murtaza said he along with Senator Azam Nazeer Tarar told the committee that the law would be violative of the Constitution if it did not apply to both foreigners and Pakistan nationals. “Presently, convicts of military courts can file a writ petition against their sentence in a high court as per decision of the Supreme Court but that scope is very narrow,” Murtaza said.
According to Section 3 of the proposed ICJ bill, Murtaza said, a foreign national can approach the high court about not being given a fair trial but Pakistani nationals cannot claim the same as there were no such provisions under the Pakistan Army Act that governs military courts.
The JUI-F senator said his party had opposed the bill in the National Assembly on the grounds that it was discriminatory, calling for extending the benefit to citizens and not to foreign nationals alone. He said the committee would hold further deliberations on making amendments in the proposed legislation so that it should not be person-specific. To extend the right of appeal to military convicts, the Parliament has to amend the Pakistan Army Act, Senator Murtaza said.
In the view of Barrister Ali Zafar, the proposed law should only refer to the Vienna Convention and adopt the provision of providing a review instead of being person-specific.
Speaking to Voicepk.net, Senator Raza Rabbani said members of the committee put up various questions to the law minister Farogh Nasim as a preliminary discussion on the bill as the law minister was not present in the last meeting of the committee. The PPP senator said that he had also pointed out in the last meeting that the proposed legislation was discriminatory and against the Constitution.
Rabbani said the bill to provide right of review to Khulbushan Jadhav was an unnecessary legislation. “Firstly, Article 36 of the Vienna Convention only talks of consular access to detained foreign nationals and does not mention the right of a fair trial to them,” he said.
The PPP senator said his party had opposed the bill in the National Assembly and was against bringing in a person-specific law to benefit a foreign spy.
In the meeting, PPP Senator Farooq H Naek said the International Court of Justice had not specifically directed Pakistan to carry out legislation for giving relief to Kulbhushan Jadhav. Instead, the PPP senator told the meeting that the ICJ had used the words “if necessary, then Pakistan may go for legislation” in its verdict.
Responding to reservations of the senators against the bill, Federal Law Minister Dr Farogh Naseem told members that they could file a contempt of court petition against Pakistan and move the United Nations Security Council to impose sanctions.
Rabbani said he told the committee that there was no provision of initiating contempt proceedings in the ICJ’s statute. “The United States had vetoed a resolution brought by Nicaragua for not implementing the ICJ’s order on the Contra scandal,” Rabbani told the committee. “Pakistan has strategic partners like China who can use their veto power if the ICJ takes the case to the Security Council in the case of Khulbhushan Jadhav,” the PPP senator said.
According to Rabbani, if the Senate passes the International Court of Justice (Review and Reconsideration) Bill with amendments, then it would be sent back to the National Assembly to pass the amended version of the bill. “If the amended version is not passed by the National Assembly, the government has the option to pass it in a joint sitting of Parliament,” he said.