Can Kulbhushan Jadhav’s original defender Harish Salve come to his rescue again? The ministry of external affairs certainly believes so and this time in Islamabad.
“The Government of Pakistan has not been able to fulfil its obligations on implementation of the ICJ judgment in letter and spirit,’’ said MEA spokesperson Anurag Srivastava. “It has not yet addressed the core issues, which includes provision of all documents related to the case, providing unconditional and unimpeded consular access to Kulbhusan Jadhav and appointment of an Indian lawyer or a Queen’s counsel to ensure free and fair trial.’’
This is the first time since the Ordinance, which allowed Jadhav to file a case in civil court to defend the charge of espionage against him, India has chosen to say Pakistan has failed to “fulfil its obligation’’ as it has also not allowed the “appointment of an Indian lawyer or a Queen’s counsel to ensure free and fair trial.’’
Salve was appointed Queen’s Counsel for England and Wales earlier this year. A Queen’s Counsel is awarded to those who have demonstrated a particular skill in legal field. The inclusion of a Queen’s Counsel to defend him opens the door for Salve—who argued passionately in the International Court of Justice at Hague—to do so once again.
On Tuesday, the Pakistan Parliament in a voice vote extended the Ordinance due to expire this week for another four months. The extension signals to the international world that Pakistan is serious about the appearance of fulfilling its international obligations. But it is also an attempt to ensure that the Jadhav conundrum—especially with the civil trial in Pakistan on its terms—continues. And this will not be an easy route.
The Jadhav case has presented a Catch-22 situation for India. Despite a major victory at the International Court of Justice of possible relief in a civil court, Jadhav’s refusal to file a petition has put India in a tough position. Pakistan’s Ordinance does allow the Indian High Commission to file a petition, but for India and Pakistan nothing is ever simple.
The appointment of the lawyer—like consular access, which Pakistan so far has offered but without privacy—has become another hostile battle between the neighbours.
The civil court route is open to Jadhav—though he has refused to file a petition as Pakistan has claimed—but the stipulation is that the lawyer appointed by India is Pakistani. This was a position that was backed by Islamabad High Court.
A two-judge bench headed by chief justice Athar Minallah held that Pakistan had to inform Jadhav of his rights under the Vienna Convention, as well as the Ordinance promulgated by Pakistan to offer him review of his military trial. “He shall be specifically informed regarding his right to avail the statutory remedy provided under the Ordinance of 2020 and to authorise the Government of India to arrange legal representation on his behalf,’’ the chief justice has been quoted as saying.
The court also gave India time till September 3 to appoint a lawyer. The lawyer, the attorney general of Pakistan clarified, according to media reports, must be someone who could practice in Pakistan.
India had alleged earlier that Pakistan was not serious about the Ordinance filed. Pakistan, an MEA statement in July alleged, took “two weeks’’ to inform India about the Ordinance. The copy was shared only after India requested. “It has blocked all the avenues for an effective remedy available for India,’’ MEA statement read.