Supreme Court senior advocate and patron, J&K Panther’s Party, Prof Bhim Singh, has taken the lead in the battle for the release of Indian national, Mr Kulbhushan Sudhir Jadhav, who was arrested in March 2016 in mysterious circumstances (most likely abducted from Chabahar, Iran), denounced as a spy fomenting trouble in the disturbed province of Balochistan, and condemned to death by a martial law court on April 10, 2017.
As Executive Chairman of the State Legal Aid Committee (a registered NGO) and chairman of the India-Pak Joint Defence Committee for Prisoners, Bhim Singh has over the past two days held several video conferences with senior Pakistani colleagues, including Zulfiqar Ali Jehangir, Advocate, Supreme Court of Pakistan, and president of India-Pak Joint Defence Committee for Prisoners, to discuss the legal defence for Mr Jadhav.
Parallel to this development, the Government of India has conveyed to Pakistan that it will appeal the order against its citizen, and has demanded two certified copies of the charge sheet and judgment delivered by the Pakistan military court. Indian High Commissioner in Islamabad, Gautam Bambawale, met Pakistan foreign secretary Tehmina Janjua on April 14 to press for consular access to the former naval officer, which has already been denied 13 times. On Friday, the Pakistan foreign secretary again denied consular access, asserting that in cases of alleged espionage, access would not be granted. Bambawale insisted that access must be granted under international law.
In its writ petition to be presented before the Supreme Court of Pakistan (most likely on April 17), the State Legal Aid Committee has protested against the unjust, unconstitutional, illegal and mala fide sentence awarded by Field General Court Martial (FGCM) under the Pakistani Army Act, following which Army chief, General Qamar Javed Bajwa, signed the order of death sentence to Kulbhushan Jadhav on April 10.
The petition urges the apex court to intervene to provide a copy of the order of Field General Court Martial (FGCM) passed on April 10, 2017 at an unknown place. It urges that lawyers from the Legal Aid Committee be given an opportunity for an interview with Kulbhushan Jadhav who is detained at an unknown place in Pakistan. An appropriate writ petition challenging the credibility and viability of the impugned order of the Pakistan Military Court can only be filed before the Supreme Court of Pakistan after copies of the charge sheet and judgment are made available to legal counsel.
The India-Pak Joint Defence Committee for Prisoners has urged the Chief Justice of Pakistan, Hon’ble Mr. Justice Mian Saqib Nisar and 15 companion judges, that Kulbhushan Sudhir Jadhav, an Indian national who was sentenced to death on April 10, 2017 by Field General Court Martial (FGCM) under the Pakistani Army Act, is presently in the custody of the Pakistan Army in Pakistan. His death sentence was confirmed by General Qamar Javed Bajwa within the meaning of scope of Pakistan’s Army Act.
However, under the Pakistan Army Act, Section 7.2.3, Military Court convicts can have the decisions (of the Military Court) reviewed by Civilian Courts. The Constitution of Pakistan provides that any affected person has a fundamental civil right to challenge a decision by any Forum /Authority, including the Military Court, for enforcement of fundamental rights /civil rights of any person.
So far, the State Legal Aid Committee has not succeeded in securing a copy of the judgment made by the Military Court. The order violates fundamental principles of natural justice and violates the internationally accepted Code of Conduct to be followed by any civil/criminal court. The petition argues that the Military Court of Pakistan is obliged to provide a copy of the judgment passed against Kulbhushan Sudhir Jadhav dated April 10, 2017 to his relatives /lawyers /public.
The only accusation against Indian national Kulbhushan Jadhav which has been narrated in a statement by the Pakistani Military Publicity Wing, Inter Services Public Relations (ISPR), is that Jadhav was declared guilty of waging war against the country (without naming the country). The ISPR statement of April 10, 2017 states, “The spy (Kulbhushan Jadhav) was tried through Field General Court Martial under the Pakistan Army Act and awarded the death sentence. Today, Chief of Army Staff General Qamar Javed Bajwa confirmed his (Kulbhushan Yadav) death sentence awarded by FGCM.”
This prompted the India-Pak Joint Defence Committee for Prisoners under the chairmanship of Prof Bhim Singh to launch the process for free legal aid to Mr Kulbhushan Jadhav.
The Committee laments that the outdated Official Secret Act of 1923 (enacted by the British Empire, and continuing in the successor states of India and Pakistan) is being misused by the Pakistan Military and urges the Hon’ble Supreme Court of Pakistan to set aside the order /mala fide judgment /authoritarian order ordering death sentence to an Indian civilian and order a fair trial within the meaning and scope of the Constitution of Pakistan by an appropriate court of law in accordance with the rules and procedure prescribed to hold a trial against a civilian by providing him reasonable legal aid/assistance.
The Legal Aid Committee (applicant) has offered legal aid and assistance to Kulbhushan Jadhav before an appropriate court constituted in accordance with the constitutional mandate of the Islamic Republic of Pakistan. The Executive Chairman of the India-Pak Joint Defence Committee for Prisoners has been appointed to argue the case for Kulbhushan Jadhav before the Supreme Court of Pakistan.
However, the case has been complicated by the fact that the Lahore High Court Bar Association on Friday, April 14, announced that it would cancel the membership of any lawyer who provided legal aid to the alleged Indian spy, Kulbhushan Jadhav.
New Delhi is exploring various diplomatic and legal options, including getting Jadhav’s family to appeal against the verdict.
It remains to be seen if Prime Minister Nawaz Sharif extends reasonable and legitimate cooperation to India to pursue this case in the Supreme Court of Pakistan.
Pgurus, 14 April 2017
https://www.pgurus.com/legal-battle-launched-for-kulbhushan-jadhav/