ISLAMABAD          -       The Islamabad High Court (IHC) Monday asked the federal government to offer India and convicted Indian spy Commander Kulbhushan Jadhav another opportunity to appoint a lawyer for filing his review petition for his death sentence.

A two-member special bench of IHC comprising Chief Justice of IHC Justice Athar Minallah and Justice Miangul Hassan Aurangzeb conducted hearing of the government’s plea seeking the appointment of a legal representative for Indian spy Kulbhushan Jadhav.

The court also directed to constitute a larger bench to hear this case and observed, “We feel that it would be appropriate if a larger Bench is constituted to hear this matter in view of the importance of the questions raised for our consideration.

Later, the court directed the Registrar of IHC to fix the proceedings of this case at 02:00 p.m. on September 3 before a larger bench.

The IHC bench noted in its order, “The Government of Pakistan shall once again inform Commander Jadhav regarding his rights under Article 36 of the Convention and the judgment of the International Court will also be brought to his attention. He shall be specifically informed regarding his right to avail the statutory remedy provided under the Ordinance of 2020 and to authorize the Government of India to arrange legal representation on his behalf.

It added, “The Government of Pakistan shall communicate this order to the Government of India. Subject to the applicable laws, the latter shall be at liberty to make appropriate arrangements on behalf of Commander Jadhav in the context of the Convention, read with the statutory right made available under the Ordinance of 2020, so as to give effect to the judgment of the International Court.”

The court observed that in the meanwhile, we expect that the right to a fair trial of Commander Jadhav will be respected and utmost care will be exercised while making statements, verbal or in writing, reporting by print and electronic media or otherwise commenting on or relating to the proceedings before this Court, so as to ensure that the principles highlighted by the august Supreme Court are not breached.

The IHC dual bench also appointed Abid Hassan Manto, Hamid Khan, Senior Advocates of the Supreme Court and former Presidents of the Supreme Court Bar Association and Makhdoom Ali Khan, Senior Advocate Supreme Court and former attorney general of Pakistan as amici curiae for the legal assistance in general and, in particular, to ensure that the judgment of the International Court is effectively implemented.

During the hearing, the attorney general stated before the court that Commander Jadhav and the Government of India were informed regarding the promulgation of the Ordinance of 2020 but they have not shown willingness to avail the statutory remedy, which has been specifically made available to fulfil the requirements set forth by the International Court in its judgment.

He further stated that the Government of India had informed that it had engaged a counsel but the latter was not given a power of attorney so that necessary documents could be handed over to him.

The AG maintained that since the time prescribed for availing the statutory remedy was expiring, therefore, this petition was filed in order to give effect to the judgment of the International Court. He asserted that the Government of India was requested to avail the statutory remedy but the latter has not demonstrated a bonafide serious intent in this regard.

The court noted that due to the exceptional circumstances prevailing on account of the COVID-19 pandemic, this court, vide office order, dated 24-03-2020, had suspended the requirement of availing remedies within the prescribed limitation period and the aforementioned notification continues to be effective.

“We feel that in order to ensure the effectiveness of the review and reconsideration of the conviction and sentence of Commander Jadhav, a reasonable opportunity ought to be extended to the latter and the Government of India to arrange legal representation and to file a petition. We, therefore, at this stage restrain ourselves from appointing a counsel on behalf of Commander Jadhav and advise the Government of Pakistan to extend an opportunity to Commander Jadhav and the Government of India for arranging legal representation in terms of Article 32(1)(c) of the Convention and in accordance with the applicable laws. We note that the International Court has granted a continued stay of execution as “an indispensible condition for the effective review and reconsideration of the conviction and sentence of Mr Jadhav,” the bench observed in the order.

The court said that through this petition, the State of Pakistan has sought the review and reconsideration of the conviction and sentence of Commander Kulbhushan Sudhir Jadhav, handed down by the Field General Court Martial on conclusion of the trial conducted under the Pakistan Army Act 1952, read with the Official Secrets Act 1923. Mr Jadhav was arrested and tried on charges of being involved in espionage and terrorism activities. He was sentenced to death. The appeal preferred against the conviction and sentence was dismissed by the Military Appellate Court.

The Attorney General gave a detailed background of the case and the events which led to the filing of this petition. The Government of India instituted proceedings before the International Court of Justice.

The International Court stayed the execution of the sentence and, on conclusion of the proceedings, pronounced judgment, dated July 17, 2019.

In response to a court query regarding the object and purpose of the promulgation of the International Court of Justice (Review and Re-consideration) Ordinance, 2020, the AGP explained that it was to give effect to the judgment of the International Court and in this regard, he drew our attention to the relevant paragraphs of judgement of the ICJ.

The IHC bench observed, “With the able assistance of the learned Attorney General we have carefully gone through the provisions of the Ordinance of 2020. It appears to us that by giving a statutory right to a foreign national, in this case Commander Jadhav, to seek the review and reconsideration of the conviction and sentence handed down by a Military Court, the concerns recorded by the International Court in relation to the limited scope of judicial review under Article 199 of the Constitution of the Islamic Republic of Pakistan have been attended to. The wide scope of the right of review and reconsideration and its effectiveness as a statutory remedy in the context of the judgment of the International Court appears to be obvious from the expressions used in section 3 of the Ordinance of 2020.”