Commander Kulbhushan Sudhir Jadhav aka Hussain Mubarak Patel is a serving Indian Navy officer and senior RAW operative, who was arrested in the Pakistani province of Balochistan on charges of terrorism and spying for his mother country India. After his arrest, the Indian Navy Commander sang like a canary and made a full disclosure before a Magistrate of his nefarious plans to subvert Pakistan, sabotage the CPEC and seditiously recruit, train and arm Baloch youth to commit acts of insurgency and terrorism.
On 10 April 2017, since Jadhav is serving military person, he was tried and sentenced to death by a Field General Court Martial in Pakistan. On 18 May 2017, at India’s appeal, the International Court of Justice (ICJ) stayed the execution pending the final judgement on the case. On 17 July 2019, the court rejected India’s petition for Jadhav’s release and ordered Pakistan to suspend the execution. It ruled that Pakistan will have to review the entire process of trial and conviction of Kulbhushan Jadhav and provide India with consular access. Pakistan permitted Jadhav’s mother and sister to visit him and also granted consular access to India.
Last year in July, the ICJ ruled that Pakistan was in breach of its obligations under Article 36 of the Vienna Convention on Consular Relations (VCCR) on three counts: first, by not informing Jadhav of his rights under the VCCR: second, by not informing India of Jadhav’s arrest and detention without delay; and third, by denying consular officers of India access to Jadhav, which among other things, was contrary to their right to arrange for his legal representation.
The ICJ verdict found Pakistan’s breaches of Article 36 of the VCCR to be “internationally wrongful acts of a continuing character”, and directed that as reparation, Pakistan should provide for “effective review and reconsideration” of Jadhav’s conviction and sentence, including, if necessary, by enacting appropriate legislation.
The impediment for submitting a review appeal was that since Jadhav was convicted by a military court under the Army Act and his conviction was upheld by a military court of appeal, the only review option available in his case was a review petition before a civilian high court.
Since the scope of judicial review of judgements of military courts by civilian courts is highly restrictive, courts have held that in such jurisdiction, they are “not empowered to analyze each and every piece of evidence in order to return a verdict” and “controversial questions of facts…cannot be looked into in this limited extraordinary writ jurisdiction.
To enable the legislative process, the President of Pakistan promulgated the International Court of Justice (Review and Reconsideration) Ordinance, 2020, in May this year. The Ordinance states that its objective is to “provide for the right of review and reconsideration in giving effect to the judgment of the International Court of Justice”. It says where the ICJ passes an order under the VCCR or a foreign national is aggrieved in respect of the rights available under Article 36 of the VCCR, the foreign national, their authorized representative or a consular officer of their mission may file a review petition before the relevant high court against the order of a military court. The Ordinance further states that in deciding such a petition, the court shall examine whether any prejudice has been caused to the foreign national “in respect of his right to defence, right to evidence and principles of fair trial, due to denial of consular access according to the Vienna Convention on Consular Relations.
Ironically, Commander Jadhav was arrested during the rule of PML (N) but neither its leader Mian Nawaz Sharif nor any other member of his government, ever issued a statement condemning India or even naming Jadhav. The PML (N) government even went to the extent of allowing India to submit an appeal for the Jadhav case to the ICJ and acceded to participating in the hearing, which was not mandatory.
Now out of malicious intent, the opposition, comprising both the PML (N) and the PPP, whose leaders are tainted by charges of corruption, are being vocal in castigating the current ruling dispensation that it has sold its soul to Mephistopheles and is providing a safe exit to the Indian spymaster. There was so much hullabaloo that the government was put on the back foot since the opposition threatened to boycott the legislation if it was presented in the Parliament.
The government finally laid the ordinance aimed at allowing Indian spy Kulbhushan Jadhav to have consular access in line with the ICJ before the National Assembly on 27 July. Earlier, the opposition had questioned the government’s move to “facilitate” a “declared terrorist” – who was caught from Balochistan in 2016 and then convicted by a military court in April 2017 after his confession – and equated the new ordinance with the “NRO” (National Reconciliation Ordinance) issued by former military dictator General Pervez Musharraf as part of a deal with the PPP in 2007 to end cases against politicians. The opposition is raising a storm in a teacup in the case of Commander Kulbhoshan Jadhav.
The writer is a retired Group Captain of PAF. He is a columnist, analyst and TV talk show host, who has authored six books on current affairs, including three on China