The Islamabad High Court, hearing the case of convicted Indian spy Kulbhushan Jadhav, observed in a recent proceeding that he cannot be denied the right to a fair trial.
A three-member bench of the high court is hearing a petition filed by the law ministry seeking appointment of a counsel for Jadhav, who himself and his country have shown disinterest to appoint a lawyer for review of his conviction by a military court in Pakistan.
Pakistani security agencies had arrested Kulbhushan Sudhir Jadhav alias Hossein Mubarak Patel, an ‘on-duty RAW agent’, from Balochistan on March 24, 2016. He was said to be an officer of the Indian navy working for the Indian spy agency to destabilize Pakistan.
On March 25, a day after the arrest, the Indian Ministry of External Affairs claimed that the Indian national arrested from Balochistan has no connection with the government, however, admitted that Kulbhushan Jadhav was a former officer of the Indian navy.
What Kulbhushan had confessed?
Hailing from Mumbai, Kulbhushan Jadhav, in his confessional video statement soon after his arrest, said that he had joined Indian Defence Academy in 1987 before being commissioned in Indian navy in 1991.
In contrast with New Delhi’s claim, he said, “I am still a serving officer in the Indian Navy and will be due for retirement in 2022”.
The on-duty spy went on to say that he commenced intelligence operations by 2002 and established a small business in coastal city of Chabahar, Iran in 2003 as a cover-up. He admitted to have visited Karachi undetected in 2003 and 2004.
“I am basically the man for Mr Anil Kumar Gupta who is the joint secretary of RAW and his contact in Pakistan, especially in the Baloch students organization,” he confessed in the video.
The operative said that he was directed to meet Baloch insurgents and conduct subversive activities with their collaboration, which resulted in the ‘killing or injuring of Pakistani citizens’.
The spy had contacts with banned organizations and was working on plans to breakaway Karachi and Balochistan from Pakistan, and to sabotage the flagship China-Pakistan Economic Corridor (CPEC) project.
Sentenced to Death
Jadhav, was handed down death sentence by the military court in April 2017 for espionage and terrorism after his arrest in March 2016 from Balochistan.
The Indian naval officer had confessed to committing and planning subversive activities inside Pakistan.
The spy was tried through Field General Court Martial (FGCM) under the Pakistan Army Act (PAA) and awarded death sentence.
On April 10, 2017 COAS, Gen Qamar Javed Bajwa conﬁrmed his death sentence awarded by Field General Court Martial (FGCM).
Jadhav confessed before a Magistrate and the Court that he was tasked by Indian spy agency Research and Analysis Wing (RAW) to plan, coordinate and organize espionage/sabotage activities aiming to destabilize and wage war against Pakistan by impeding the efforts of law enforcement agencies for restoring peace in Balochistan and Karachi.
India condemned death sentence
Any move to execute an Indian citizen convicted by a Pakistani court-martial of spying would be “premeditated murder”, New Delhi warned Islamabad after death sentence to Jhadav announced.
India’s foreign ministry said it had summoned the Pakistan High Commissioner Abdul Basit to protest after Kulbushan Sudhir Jadhav was sentenced to death by a military court, which was closed to the public.
It claimed there was no evidence against Jadhav, whom Indian media have described as a former naval officer, calling the proceedings against him “farcical”.
Mother, Wife Meet Jadhav in Pakistan
In December 25, 2017 Pakistan allowed Jadhav’s mother and his wife to travel to Pakistan to meet him.
Back in November, Pakistan offered India a meeting between Jadhav and his wife on humanitarian grounds but India, in its reply asked Pakistan to allow Jadhav’s mother to travel with his wife and a diplomat should accompany the two during the meeting.
Earlier Pakistan’s foreign office spokesperson confirmed that the visa applications of Indian spy’s mother and wife were received for their visit on humanitarian grounds.
Jadhav’s family members were accompanied by Indian Deputy High Commissioner JP Singh during the meeting.
India Files Case at ICJ
India approached the International Court of Justice (ICJ) against Pakistan for denial of consular access to Jadhav and challenging the death sentence.
The ICJ is the principal judicial organ of the United Nations. It was established by the United Nations Charter in June 1945 and began its activities in April 1946. The seat of the Court is at the Peace Palace in The Hague (Netherlands).
In July 2019 after case hearing, 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’. It maintained the stay on the convicted 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 case, it was essential for the review and reconsideration of the conviction and sentence of Jadhav to be effective.
Pakistan Passes Law To Give Right To Appeal To Jadhav
Pakistan enacted the International Court of Justice (Review and Reconsideration) Act last year in June, laid down that a consular officer of the mission of the state concerned may file a petition before a court for review of a conviction, or sentence, handed down by a military court to its citizen in another country.
The National Assembly had adopted a bill on June 10 giving Kulbhushan Jadhav the right to appeal against the death sentence awarded by a military court in April 2017.
The assembly carried out the legislation in compliance with a ruling given by the International Court of Justice in July 2019 asking Pakistan to grant the Indian spy the right to appeal against the death sentence and also to give him consular access.
Petition in Islamabad High Court
Presently the matter has been in the Islamabad High Court over appointment of a counsel for Kulbhushan Jadhav for review of the conviction at an appropriate forum after no response from the Indian government as well as the convict.
The federal law ministry has filed a petition in the IHC seeking appointment of a counsel for Jadhav.
The high court observed in a recent hearing that the convict cannot be denied the right to a fair trial.
The court also called upon the Indian government to ask an official of its mission in Pakistan to attend hearings of the review petition filed against Jadhav’s conviction.
In an early hearing, the attorney general had informed the court that the International Court of Justice (Review and Reconsideration) Act, enacted in June last year, laid down that a consular officer of the mission of the state concerned may file a petition before a court for review of a conviction, or sentence, handed down by a military court to its citizen in another country.
Attorney General Khalid Javed Khan read the legal clause relevant to the case and said that
Kulbushan Jadhav has not applied for review of his conviction, while the Indian High Commission was also not responding over the matter.
The attorney general placed before the court correspondence between Pakistan and India for providing counsel to Jadhav in order to comply with the verdict of the International Court of Justice.
He said the Indian government did not respond, and argued that the federal government had filed the petition seeking appointment of a lawyer so that the verdict of the military court could be revisited at an appropriate forum.
According to the attorney general, such prisoners should be dealt with in accordance with the Vienna Convention.
The attorney general said that Pakistan could only comply with international obligations if Kulbhushan Jadhav authorised a lawyer to file a review against his conviction.