ISLAMABAD: A bench of the Islamabad High Court (IHC) was informed on Tuesday that the Indian authorities and Indian spy Kulbhushan Jadhav seemed unwilling to avail the remedy and consular access opportunities extended to them repeatedly under International Court of Justice (Review and Recon­sideration) Ordi­nance 2020 promulgated in compliance with the International Court of Justice (ICJ) directives.

Attorney General for Pakistan Khalid Jawed Khan apprised the bench that the Ministry of Foreign Affairs on September 4 forwarded the IHC order to the Indian Ministry for External Affairs in order to extend yet another opportunity to them to join the legal proceedings pending in this court, but neither the Indian government nor Commander Jadhav of the Indian intelligence agency, Research and Analysis Wing (RAW), appear interested in appointing counsel as per Legal Practitioners and Bar Council Act to contest the case or avail relief despite ICJ directives.

He said the Indian government on September 7 responded to the Pakistani letter and repeated the previous stance of not joining the proceeding by raising three main objections to Pakistan’s continued efforts to provide opportunity of review and counselor access to Jadhav.

The Indian government termed The International Court of Justice (Review and Reconsideration) Ordinance 2020 as “illusion of remedy”, not a proper remedy, the AG informed the larger bench. Mr Khan explained the ordinance, which had already been extended for another 120 days, provided proper opportunity to comply with the ICJ direction.

The Indian authorities insisted that they had been denied of ‘meaningful’ consular access to the detained spy, he said, adding that they also rejected engaging Pakistani lawyer to contest the case and demanded that only Queen’s Counsel (senior lawyers in various Commonwealth countries appointed by letters patent to be one of Her Majesty’s Counsel learned in the law) fight the Indian spy case.

As per Legal Practitioners and Bar Council Act, a lawyer not enrolled with any bar council in Pakistan could not argue in any court within Pakistan, he said, explaining that the Indian demand was not only against the Pakistan’s legal system but also against the legal practice of India.

The IHC three-member bench comprising Chief Justice Athar Minallah, Justice Aamer Farooq and Justice Miangul Hassan Aurangzeb heard the arguments but decided to proceed with ‘abundant caution’, seeking assistance of the learned attorney general and the amici curiae for ascertaining the obligations of Pakistan if the Indian government continued refusing support to Jadhav.

The court observed: “Prima facie, it appears to us that the Government of India is reluctant to join these proceedings or to avail the remedy provided under the International Court of Justice (Review and Reconsideration) Ordinance, 2020.”

“We have also been informed that the stance of Commander Kulbushan Sudhir Jadhav remains unchanged. The Government of India has not made any attempt to approach this Court directly despite opportunities extended in this regard.”

IHC Chief Justice Minallah said: “We are mindful of the fact that rights of Commander Jadhav are involved in the matter before us. We are also conscious that it is an obligation of the Government of Pakistan to give effect to the judgement of the International Court of Justice. Keeping in view the importance of the matter in hand, particularly when the right to life and right to fair trial of Commander Jadhav are involved, it is important to proceed with abundant caution.”

As the attorney general had also drawn the IHC attention to paragraph 146 of the International Court of Justice (ICJ) decision, the bench observed that in order to meet the ends of justice and ensure implementation of the ICJ judgement in letter and spirit, it would be beneficial if he could assist the court regarding the scope of the obligation of “providing effective review and reconsideration” and its modalities in the context of the principles and law expounded by the ICJ.

Before adjourning proceedings till November 9, the bench further observed: “We also expect to be assisted regarding the interpretation of the expressions ‘an obligation of result’ and ‘must be performed unconditionally’. We further expect the learned attorney general and the amici curiae to assist us in ascertaining the obligations of the Government of Pakistan relating to implementation of the judgement of the ICJ if the Government of India continues to show reluctance in extending support to Commander Jadhav.”

Published in Dawn, October 7th, 2020