PAK ARMY REJECTS INDIA’S OBJECTIONS OVER ILL-TREATMENT TO JADHAV’S FAMILY, SAYS IT SHOULD RATHER RESPECT ITS GESTURE

The article originally appeared on India Today.

Pakistan army has rejected India’s objections over ill-treatment meted out to Kulbhushan Jadhav’s family. Maj Gen Asif Ghafoor, DG, and Inter-Services Public Relations said in a press conference that the meeting was a humanitarian gesture and India should rather respect Pakistan’s move.

In response to a question on whether the decision to allow the Kulbhushan Jadhav family was taken under some international pressure, the spokesperson of Pakistan army said there was no such thing and the meeting being a humanitarian gesture and not a consular access is a proof of that.

Maj Gen Ghafoor also reiterated the routine Pakistani rant of freedom struggle in Kashmir and dismissed the reports that Indian soldiers conducted surgical strike inside Pakistan-occupied-Kashmir and boasted that “India cannot lure Pakistan into such unprofessional undertakings.”

HUMANITY SHAMED, MOCKERY OF JUSTICE

The ill-treatment of Kulbhushan Jadhav’s mother and wife has outraged India and the nation’s sentiment was reflected today in the Parliament when all political parties came together to denounce the Pakistani act of using pain and suffering of a family to further its anti-India propaganda. Pakistan had allowed Jadhav’s mother and wife to meet him earlier this month and the meeting was held on 25 August.

The meeting that lasted for 40 minutes was arranged in a container with a glass barrier between Jadhav and his family. They were not allowed to speak in Marathi and Hindi. Before the meeting, Pakistani authorities forced Jadhav’s mother and wife to change their clothes and remove their Mangalsutra, bindis and bangles. And after seeing their son and husband, who is on death row, they were allowed to be heckled by an insensitive Pakistani media that addressed them with phrases like ‘mother of a killer son’ or ‘a husband who had killed thousands of innocent Pakistanis’.

Kulbhushan Jadhav is a former Indian Navy officer who was on a routine business trip in Iran from where he was abducted by terrorists and later sold to Pakistan’s notorious intelligence agency ISI. Pakistan, on its part, claims Jadhav was arrested from Balochistan. Seeing an opportunity to further its anti-India propaganda, Pakistan declared the innocent Indian a spy engaged in subversive activities and after a sham trial, sentenced him to death.

Pakistan, the country that has been declared a terror haven by the US, didn’t respond to the multiple demands made by India for consular access to Jadhav. India moved to the International Court of Justice in May against Pakistan which stayed Jadhav’s hanging till the matter was decided.

©SantoshChaubey

KULBHUSHAN JADHAV CASE: PAKISTAN APPOINTS ITS FORMER CHIEF JUSTICE AS AD-HOC JUDGE AT ICJ

The article originally appeared on India Today on October 11.

Pakistan has appointed Tassaduq Hussain Jilani, its former chief justice, as ad-hoc judge at the International Court of Justice (ICJ) to represent Pakistan in the Kulbhushan Jadhav case .

A report in The News International said the decision by Pakistan’s law ministry in this regard had been signed by Pakistan PM Shahid Abbasi. Tassaduq Jilani, who retired from the Supreme Court of Pakistan in July 2014, will now defend Pakistan’s side in the case which was previously being handled by Khawar Qureshi.

Qureshi, a Pakistani-origin practicing lawyer and judge in Britain, once represented India against Enron in an international arbitration case on Dabhol power plant closure. India ultimately lost that case.

The ICJ statute allows appointment of judges on its tribunal from the countries that are directly engaged in a dispute. Since India and Pakistan are involved in the Kulbhushan Jadhav case, Pakistan was allowed to carry this appointment.

The 12-member ICJ tribunal hearing the Kulbhushan Jadhav case has an Indian, former Supreme Court Justice Dalveer Bhandari, in the panel of judges that passed the order on May 18 putting a stay of Jadhav’s execution till final orders by the ICJ.

The government of Pakistan was criticised back home for not exercising the option to put a Pakistan judge on the panel to defend the Pakistani side.

Forced by the criticism and loss of face when India won the round one of the case, the government of Pakistan then began to seriously look for someone who could represent it at the ICJ. Kulbhushan Jadhav is an innocent Indian whom the Pakistani propaganda has declared a spy and has sentenced to death. Pakistan claims Jadhav was attached to the Research and Analysis Wing (RAW) and arrested Jadhav on March 3, 2016. Pakistan’s military court country sentenced him to death on April 10, 017.

India has submitted its 22-page written response in the ICJ while Pakistan will submit its reply by December 13.

©SantoshChaubey

PAKISTAN NOMINATES ITS FORMER CHIEF JUSTICE AS AD-HOC JUDGE AT ICJ IN KULBHUSHAN JADHAV CASE

Pakistan has nominated Tassaduq Hussain Jilani, its former chief justice, as ad-hoc judge at the International Court of Justice (ICJ) to represent Pakistan in the Kulbhushan Jadhav case and has written communicated the same to the ICJ, a Radio Pakistan report said quoting Pakistan’s Foreign Office.

The official announcement came after Prime minister of Pakistan endorsed the decision by Pakistan’s law ministry in this regard. Jilani, who retired from the Supreme Court of Pakistan in July 2014, will now defend Pakistan’s side in the case which was previously being handled by Khawar Qureshi, a Pakistani-origin practicing lawyer and judge in Britain who once represented India against Enron in an international arbitration case on Dabhol power plant closure which India eventually lost.

The ICJ Statute allows appointment of judges on its tribunal from the countries that are directly engaged in a dispute, like here India and Pakistan are in the Kulbhushan Jadhav case. According to a Dawn report, Jilani served as a Judge in the Supreme Court of Pakistan from July 31, 2004 to December 11, 2013 before being elevated as the country’s 21st chief justice on December 11, 2013.

The 12-member ICJ tribunal hearing the Kulbhushan Jadhav case has an Indian, former Supreme Court of India Justice Dalveer Bhandari, in the panel of judges that passed the order on May 18 putting a stay of Jadhav’s execution till final orders by the ICJ. The government of Pakistan was criticised back home for not exercising the option to put a Pakistani judge on the panel to defend the Pakistani side.

Forced by the criticism and loss of face when India won the round one of the case, the government of Pakistan then seriously began to look for someone who could represent it at the ICJ.

Kulbhushan Jadhav is an innocent Indian whom the Pakistani propaganda has declared a spy and has sentenced to death. Pakistan claims Jadhav, a retired Indian Navy officer, was attached to the Research and Analysis Wing (RAW). Pakistan shown Jadhav’s arrest on March 3, 2016 from its restive Balochistan province though India maintains that Jadhav was on a routine business trip to Iran when he was abducted by Taliban and sold to Pakistani intelligence. A military court in Pakistan sentenced Jadhav to death on April 10, 2017.

After India’s repeated requests to consular access to Jadhav was denied, it approached the ICJ on May 8, 2017. The ICJ heard the matter on May 15 and stayed Jadhav’s execution by Pakistan till further notice in its May 18 order. India submitted to the ICJ its 22-page written plea on September 13 while Pakistan is expected to submit its written reply by December 13.

©SantoshChaubey

KULBHUSHAN JADHAV CASE EFFECT? GLOBAL HUMAN RIGHTS WATCHDOG SLAMS PAKISTAN

The article originally appeared on India Today.

The International Commission of Jurists (ICJ), an international human rights watchdog with eminent jurists and legal experts as its members from all over the world, has slammed Pakistan for failing to meet its obligations under the International Covenant on Civil and Political Rights (ICCPR) which the country ratified in 2010.

According to the ICJ, this is the first time that the UN Human Rights Committee, an independent body of experts that is mandated to monitor ICCPR’s implementation, has reviewed Pakistan’s human rights track record since it became signatory in 2010. The review was done on July 11-12 and its recommendations were released yesterday.

Though the recommendations don’t make a direct reference to Kulbhushan Jadhav, an Indian national who has been given death sentence by one of Pakistan’s military courts, it can be said that the issue was on the discussion table while carrying out a review of human rights in Pakistan.

Pakistan’s military courts have been decried by every global human rights body and they gained further global infamy with the ongoing hearing in the Kulbhushan Jadhav case in the International Court of Justice. India has appealed against Pakistan in the International Court of Justice which has stayed Jadhav’s hanging till its final decision.

Jadhav was abducted by Taliban from Iran’s border areas while on a business trip and was reportedly sold to Pakistan’s intelligence agencies. The government of Pakistan and its army made him, a retired Indian Navy officer, a part of their anti-India propaganda by declaring him a spy, tried him in secrecy in Pakistan’s military courts, denying every Indian request for consular access to him, and passed a judgment to hang him.

Among the recommendations made, there are specific strictures asking Pakistan to reform its military courts, “and bring them into full conformity with Articles 14 and 15 of the Covenant to ensure a fair trial”. Articles 14 and 15 of the ICCPR deal with ensuring transparency in legal proceeding in criminal matters which among other guidelines, require the state to provide the accused counsel of his own choosing and forbids the state from taking his forced confession.

The ICCPR does provide a provision for a private hearing but it specifically says that “any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.”

UN HUMAN RIGHTS COMMITTEE ASKS PAKISTAN TO REFORM MILITARY COURTS

The UN Human Rights Committee has asked Pakistan to reform its military courts as per the provisions of the Articles 14 and 15 of the ICCPR. It is necessary for every signatory of the ICCPR to implement the treaty and submit an implementation report on every provision. Though Pakistan had submitted its report in 2015, the review was carried out this month only, listing all the prevailing concerns regarding human rights’ violations in Pakistan with inputs from other sources.

The UN committee’s recommendations also ask Pakistan to “review legislation relating to the military courts with a view to abrogating their jurisdiction over civilians as well as their authority to impose the death penalty.” Kulbhushan Jadhav has been given death sentence under Section 59 of the Pakistan Army Act which is defined as “the Section for Civil Offences” and gives Pakistan’s military courts power to award capital punishments in the garb of national security.

The ICJ release, quoting Livio Zilli, its Senior Legal Adviser and UN Representative, says, “It is deeply worrying that since ratifying the ICCPR, Pakistan’s human rights situation has worsened in a number of aspects, including with the restoration of the death penalty and the introduction of military trials for civilians.”

PAKISTAN’S MILITARY COURTS

Pakistan had established military courts in 2015 with a constitutional amendment to try people for terrorism and related offences committed in civilian areas after the December 2015 Peshawar school massacre and in March 2017 its parliament voted for another two years extension to them.

Since their establishment, the military courts have an absolute record of convictions with no acquittals. According to the Pakistan’s military, the military courts have convicted 274 people in last two years, 161 of them being sentenced to death and 113 to varying prison terms.

KULBHUSHAN JADHAV’S CASE

On April 10, the Pakistan Army chief confirmed Kulbhushan Jadhav’s death sentence given by a Pakistani military court that held Jadhav guilty of espionage. Pakistan claims Jadhav, who allegedly used the alias Hussein Mubarak Patel in Pakistan, was attached to the Research and Analysis Wing (RAW). Pakistan made Jadhav’s arrest public in March 2016.

India has maintained that Jadhav is innocent and there is no evidence against him and that Pakistsan carried out a sham, secret trial in a military court where no information on charges and evidence was given. India has warned Pakistan of ‘dire consequences’ equalling Jadhav’s death sentence with pre-meditated murder.

©SantoshChaubey

KULBHUSHAN JADHAV CASE: BEATEN IN ROUND ONE, PAK LAWYER KHAWAR QURESHI NOW BLAMES INDIAN GOVT FOR RUMOUR AROUND HIS FEE

The article originally appeared on India Today.

According to a Geo News report, Khawar Qureshi, the lawyer representing Pakistan at the International Court of Justice (ICJ), has blamed the Indian government for the ‘baseless propaganda’ surrounding the case fee he charged, something that became a rallying point for many on the social media to poke fun at him. What exacerbated his misery was the obvious comparison with Harish Salve, the Indian counsel in the case, who took just Re 1 as his court fee, a symbolism of his commitment to his motherland.

The lawyer, who has been blamed by many experts and politicians in Pakistan for not preparing well for the case and leaving many loopholes in his arguments, told Geo News that “references to his fees were complete lies fabricated by Indian Twitterati and Indian nationals behind such baseless propaganda may have government backing”.

The ICJ decision yesterday, staying execution of Kulbhushan Jadhav by Pakistan till the case was underway in the UN court, saw a rush of tweets on how a highly paid but ill-prepared Pak lawyer could not stand the legal wisdom of Harish Salve who charged just Re 1. The speculation on Twitter about his fees was largely based on media reports from Pakistan that quoted his fees for the case at around 5,00,000 British Pound, i.e., a whopping 7 crore in Pak currency and around 4.25 crore in Indian currency.

So, even if Qureshi says that “his fees were not even 10 per cent of what the Indian propaganda suggests” and even if he justifies the amount he charged by saying he “cancelled another professional commitment with another government to travel to Pakistan urgently”, he would always find it difficult to justify even this reduced gap, i.e., at 10 per cent of the claims being made, between Harish Salve’s Re 1 winning gesture to his Rs. 42.5 lakh case fee, especially when he wasted 40 minutes of the 90 minutes given to his team to present its side of the arguments. To add to Qureshi’s misery, Indian team under the leadership of Salve used its full 90 minutes.

Qureshi might have given “a 30 per cent reduction on his fees, besides covering the cost of two of his juniors’ fees”, as he claims, the bottom line is, he is being slammed in Pakistan for mishandling the case and his high fees, even at 30 per cent discount, is not giving him any room to breathe easy because Pakistan has made Kulbhushan Jadhav’s case a prestige issue and the yesterday debacle saw a mourning like atmosphere there.

It is true that the ICJ has given only an interim stay of Jadhav’s execution and Pakistan and Qureshi say they have enough evidence to prove their case in the course of hearing, the truth of the moment is, India has scored a clear diplomatic victory over Pakistan and a moral boost for further case proceedings at the ICJ.

Earlier in the day, a news came from Pakistan that it was going to have a new legal team for the case, but now Pakistan has filed a plea in the ICJ to rehear the case within six weeks with reports saying that Qureshi will continue to represent Pakistan. So, now that Qureshi is going to remain there, he has now the opportunity to silence his critics, both on his legal acumen in the case and on his exorbitant fee. Let’s see if he can match Harish Salve.

©SantoshChaubey

PAKISTAN PM NAWAZ SHARIF FEELS THE HEAT AS OPPOSITION SLAMS GOVT FOR MISHANDLING JADHAV’S CASE AT ICJ

The article originally appeared on India Today.
Here is it bit modified and extended.

Though Pakistan is trying to put up a defiant face in the wake of the adverse ruling by the International Court of Justice that has stayed Kulbhushan Jadhav’s hanging till it reaches to a conclusion, its opposition has started slamming Nawaz Sharif and his government for mishandling the situation that has led Pakistan to this humiliation. The ICJ has directed Pakistan to “take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings”.

Though based on fallacious premises that the Pak legal team at the ICJ was ill-prepared or couldn’t get time to prepare, whereas it is amply clear with today’s observations by the ICJ that Pakistan’s arguments had no legal viability, the opposition in Pakistan is training its guns on Nawaz Sharif and is asking him to reply to the nation on the fiasco.

According to a Dunya News report, main opposition parties of Pakistan, Pakistan Peoples Party (PPP) and Pakistan Tehreek-e-Insaf (PTI), have sought Sharif’s reply as well as have demanded him to urgently convene a National Security Committee (NSC) meeting.

PPP’s Sherry Rehman, a former foreign minister of Pakistan, has blamed the Sharif government of ignoring a ‘case pertaining to national security’ as his government ‘government remained stuck in Panama Leaks SC case’.

PTI has blamed the Sharif government of working for vested interests and hidden motives that ultimately proved so damaging. PTI’s chief Imran Khan has said that “the nation demands Sharif family disclose all its financial interests/assets abroad especially with Jindal in India and that “Pakistan cannot afford to have its security jeopardised by the Sharifs’ financial interests abroad”.

This is another line of thought in Pakistan that the Sharif government colluded with the Narendra Modi’s government of India to let it happen as Jadhav was sentenced to death by its military court bypassing the concerns of its civilian establishment which initially believed that the case against Jadhav was based on mere statements and more evidence was needed, as Nawaz Sharif’s Foreign Affairs Advisor Sartaj Aziz had informed the Pak Senate in December 2016. Visit of Indian businessman Sajjan Jindal, who is a common friend of Sharif and Modi and is seen as an interlocutor between the two PMs, to Nawaz Sharif’s personal house last month has only added to this line of thought.

India had approached the ICJ on May 8 and the UN’s judicial arm had agreed to conduct a public hearing of the matter on May 15 staying Jadhav’s hanging till further orders. After the May 15 hearing, the court read out it order yesterday that accepted India’s arguments and prayers and put an interim stay on Jadhav’s death sentence till a final conclusion. Though Pakistan has said that the ICJ has no jurisdiction in the matter and the ruling has not changed Pakistan’s position on Jadhav’s sentence, the ICJ ruling is being seen as an Indian victory and Pakistan’s humiliation in the diplomatic circles.

KULBHUSHAN JADHAV’S CASE

On April 10, a Pak military sentenced Kulbhushan Jadhav to death after convicting him for espionage and sabotage activities in Pakistan. Pakistan claims Jadhav, who allegedly used the alias Hussein Mubarak Patel in Pakistan, was attached to the Research and Analysis Wing (RAW). Pakistan arrested Jadhav in March 2016.

The Indian government has maintained that Kulbhushan Jadhav is a former Indian Naval officer turned businessman who was on a routine business trip to Iran when he was abducted by Pakistani intelligence. Reports say he was captured by the Taliban and later sold to the Pakistan Army. India repeatedly demanded consular access to Jadhav but Pakistan always denied it, a point that the ICJ highlighted in its ruling yesterday. The ICJ clearly said that Pakistan had committed a mistake by doing so.

India has also said that Jadhav is innocent and there is no evidence against him and that Pakistsan carried out a sham, secret trial in a military court where no information on charges and evidence was given. India has warned Pakistan of ‘dire consequences’ equalling Jadhav’s death sentence with pre-meditated murder and has time and again asked for the consular access to him.

©SantoshChaubey

KULBHUSHAN JADHAV DEATH SENTENCE: PAKISTAN TO OVERRULE INTERNATIONAL COURT OF JUSTICE’S ORDER

The article originally appeared on India Today.

According to a Dunya News report, Pakistan is going to deny the jurisdiction of the International Court of Justice (ICJ) in Kulbhushan Jadhav case, an Indian national whom Pakistan has sentenced to death alleging of espionage and sabotage in Pakistan. The Dunya News report said “Attorney General of Pakistan was reportedly briefed on Friday over Indian spy Kulbhushan Jadhav’s issue and according to the sources, Pakistan is to deny jurisdiction of International Court of Justice (ICJ) to over cases that have Pakistan’s national stability at stake.”

According to the report, the briefing states that “Pakistan does not accept international court’s jurisdiction to order the state in issue that involves its national stability.”

In another report of Daily Pakistan, “Pakistan revised its commitment to the ICJ and had withdrawn all domestic and national security related issues from the jurisdiction of the court on March 29, thus making it impossible for Modi led India to pin down Pakistan in this case.”

The Daily Pakistan report further states that Pakistan, before handing over death sentence to Jadhav, had informed the ICJ about changes it made though its UN envoy Maleeha Lodhi. “Disputes relating to or connected with any aspect of hostilities, armed conflicts, individual or collective self-defence or the discharge of any functions pursuant to any decision or recommendation of international bodies, the deployment of armed forces abroad, as well as action relating and ancillary thereto in which Pakistan is, has been or may in future be involved”, the declaration by Pakistan read.

India had approached the International Court of Justice on May 8 with its plea which requested the UN judicial body to stay Jadhav’s execution till it hears the matter and reaches to any conclusion. India in its plea had accused Pakistan of “egregious violations” of the Vienna Convention on Consular Relations (VCCR). Both India and Pakistan are signatory to VCCR. India had requested for consular access to Kulbhushan Jadhav 16 times but Pakistan denied it every time. But according to the Daily Pakistan report, the Vienna Convention cannot help India as it applies to diplomats and not spies.

After India’s application, the ICJ, using its powers under the ‘Optional Protocol to the Vienna Convention on Consular Relations concerning the Compulsory Settlement of Disputes of 24 April 1963’ had stayed Jadhav’s execution and had issued notice to Pakistan. The public hearing in the case by the ICJ would be held on May 15.

THE KULBHUSHAN JADHAV DEATH SENTENCE

On April 10, the Pakistan Army chief confirmed Kulbhushan Jadhav’s death sentence, which was handed down by a Pakistani military court that held Jadhav guilty of espionage. Pakistan claims Jadhav, who allegedly used the alias Hussein Mubarak Patel in Pakistan, was attached to the Research and Analysis Wing (RAW). Pakistan arrested Jadhav in March 2016.

The Indian government has maintained that Kulbhushan Jadhav is a formal Indian Naval officer turned businessman who was on a routine business trip to Iran when he was abducted by Pakistani intelligence. Reports say he was captured by the Taliban and later sold to the Pakistan Army.

India has also said that Jadhav is innocent and there is no evidence against him and that Pakistsan carried out a sham, secret trial in a military court where no information on charges and evidence was given. India has warned Pakistan of ‘dire consequences’ equalling Jadhav’s death sentence with pre-meditated murder and has time and again asked for the consular access to him.

©SantoshChaubey

INTERNATIONAL COURT OF JUSTICE STAYS KULBHUSHAN JADHAV DEATH SENTENCE

The article originally appeared on India Today.

In a major late night development, the International Court of Justice on Tuesday, in an interim order, placed a stay on the hanging of Kulbhushan Jadhav, the former Indian Navy officer sentenced to death by a Pakistani military court on charges of espionage.

Jadhav’s sentencing has kicked off a diplomatic row between India and Pakistan, with New Delhi slamming Islamabad for carrying out a “farcical” trial and for refusing to allow consular access to Jadhav.

The International Court of Justice, also known as the World Court or The Hague, is the main judicial organ of the United Nations and operates out of the Netherlands in Europe.

In a statement (read full ICJ statement) issued on India starting proceedings against Pakistan, the ICJ said, “Republic of India instituted proceedings against the Islamic Republic of Pakistan, accusing the latter of ‘egregious violations of the Vienna Convention on Consular Relations’ in the matter of the detention and trial of an Indian national, Mr. Kulbhushan Sudhir Jadhav, sentenced to death by a military court in Pakistan.”

HARISH SALVE REPRESENTING INDIA

External Affairs Minister Sushma Swaraj tweeted about the ICJ’s decision last Tuesday night, saying that she spoke to Jadhav’s mother and informed her about the ICJ’s decision. Senior lawyer Harish Salve is representing India at the ICJ, Swaraj added in another tweet.

“I have spoken to the mother of #KulbhushanJadhav and told her about the order of President, ICJ under Art 74 Paragraph 4 of Rules of Court”, Swaraj said, adding, “Mr.Harish Salve, Senior Advocate is representing India before International Court of Justice in the #KulbhushanJadhav case.”

Responding on India’s petition, the ICJ has forbidden Pakistan from hanging Kulbhushan Jadhav until The Hague conducts a detailed hearing on the matter.

WHAT THE ICJ SAID

In a statement (full statement) issued regarding India’s claim against Pakistan, the ICJ said, “The Applicant (India) contends that it was not informed of Mr. Jadhav’s detention until long after his arrest and that Pakistan failed to inform the accused of his rights. It further alleges that, in violation of the Vienna Convention, the authorities of Pakistan are denying India its right of consular access to Mr. Jadhav, despite its repeated requests. The Applicant also points out that it learned about the death sentence against Mr. Jadhav from a press release.”

“India submits that it has information that Mr. Jadhav was “kidnapped from Iran, where he was carrying on business after retiring from the Indian Navy, and was then shown to have been arrested in Baluchistan” on 3 March 2016, and that the Indian authorities were notified of that arrest on 25 March 2016. It claims to have sought consular access to Mr. Jadhav on 25 March 2016 and repeatedly thereafter,” the statement added.

“According to the Applicant, on 23 January 2017, Pakistan requested assistance in the investigation of Mr. Jadhav’s alleged ‘involvement in espionage and terrorist activities in Pakistan’ and, by a Note Verbale of 21 March 2017, informed India that ‘consular access [to Mr. Jadhav would] be considered in the light of the Indian side’s response to Pakistan’s request for assistance in [the] investigation process’. India claims that ‘linking assistance to the investigation process to the grant[ing] of consular access was by itself a serious violation of the Vienna Convention’,” the statement also said.

INDIA SEEKS RELIEF

According to the ICJ statement, India has sought the following:

Relief by way of immediate suspension of the sentence of death awarded to the accused.

Relief by way of restitution in interregnum by declaring that the sentence of the military court arrived at, in brazen defiance of the Vienna Convention rights under Article 36, particularly Article 36[,] paragraph 1 (b), and in defiance of elementary human rights of an accused which are also to be given effect as mandated under Article 14 of the 1966 International Covenant on Civil and Political Rights, is violative of international law and the provisions of the Vienna Convention.

Restraining Pakistan from giving effect to the sentence awarded by the military court, and directing it to take steps to annul the decision of the military court as may be available to it under the law in Pakistan.

If Pakistan is unable to annul the decision, then this Court to declare the decision illegal being violative of international law and treaty rights and restrain Pakistan from acting in violation of the Vienna Convention and international law by giving effect to the sentence or the conviction in any manner, and directing it to release the convicted Indian National forthwith.”

India has also requested the ICJ to direct Pakistan to:

Take all measures necessary to ensure that Mr. Kulbhushan Sudhir Jadhav is not executed.

Report to the Court the action it has taken in pursuance of the required statutes.

To ensure that no action is taken that might prejudice the rights of the Republic of India or Mr. Kulbhushan Sudhir Jadhav with respect of any decision the Court may render on the merits of the case”.

THE KULBHUSHAN JADHAV DEATH SENTENCE

On April 10, the Pakistan Army chief confirmed Kulbhushan Jadhav’s death sentence, which was handed down by a Pakistani military court that held Jadhav guilty of espionage.

Pakistan claims Jadhav, who allegedly used the alias Hussein Mubarak Patel in Pakistan, was attached to the Research and Analysis Wing (RAW).

The Indian government has maintained that Kulbhushan Jadhav is a formal Indian Naval officer turned businessman who was on a routine business trip to Iran when he was abducted by Pakistani intelligence.

Reports say he was captured by the Taliban and later sold to the Pakistan Army.

India has also said that Jadhav is innocent and there is no evidence against him and that Pakistsan carried out a sham, secret trial in a military court where no information on charges and evidence was given.

India has warned Pakistan of ‘dire consequences’ equalling Jadhav’s death sentence with pre-meditated murder and has time and again asked for the consular access to him.

©SantoshChaubey

PAKISTAN ARMY REITERATES HIS STAND OF NO COMPROMISE ON KULBHUSHAN JADHAV

Pakistan’s Army chief Qamar Javed Bajwa today held a conference of top army commanders at Pakistan Army’s General Headquarters in Rawalpindi (GHQ).

According to the Facebook page of the Inter Services Public Relations (ISPR), Pakistan Army’s media wing, Gen Bajwa and other commanders were briefed on Kulbhushan Jadhav issue and ‘it was concluded that that no compromise shall be made on such anti state acts’. Pakistan Army’s 201st Corps Commanders’ Conference was held to ‘review national security environment and recent developments in the region’.

It was Gen Bajwa only who had sentenced Jadhav to death. A military court in Pakistan had found Jadhav guilty of espionage and sabotage activities and of waging war against Pakistan by fomenting unrest in Balochistan and Karachi and had sentenced him to death which was confirmed by Gen Bajwa.

The first reaction by the Pakistan’s civilian government came hours letter after it was made public by the ISPR. Though Pakistan’s civilian government, including its prime minister Nawaz Sharif, has toed the military line, a Samaa TV report makes it clear that Pakistan Army acted unilaterally on Kulbhushan Jadhav.

“A meeting took place between the Prime Minister and the Chief Of Army Staff during which the latter took the former into confidence regarding the issue of Indian spy Kulbhushan Yadav”, the Samaa TV report said yesterday.

India alleges that Jadhav is innocent and there is no evidence against him and that’s why a sham trial was held in secrecy in a military court where no information on charges and evidence was given. India has warned Pakistan of ‘dire consequences’ equalling Jadhav’s death sentence with pre-meditated murder and has again asked for the consular access to him, 14th time since his arrest on March 3, 2016.

Kulbhushan Jadhav is a formal naval officer turned businessman who was on a routine business trip to Iran when he was abducted by the Pakistani intelligence. Reports also say that he was captured by the Taliban and later sold to the Pakistan Army. Pakistani claims Jadhav, who allegedly used the alias Hussein Mubarak Patel in Pakistan, was attached to the Research and Analysis Wing (RAW).

©SantoshChaubey

SECTION 59 OF PAKISTAN ARMY ACT UNDER WHICH KULBHUSHAN JADHAV HAS BEEN SENTENCED TO DEATH

The article originally appeared on India Today.
Here it is modified and extended.

Section 59 of the Pakistan Army Act sounds like a death knell for anyone whosoever is tried under it. Defined as the Section for Civil Offences, it categorically lays out conditions for it to become an overarching legal intrusion into the fundamental rights of humanity.

And when read in conjunction with other supporting sections and sub-sections of the Pakistan Army Act, we find a lethal tool that Pakistan’s Army so indiscriminately uses to suppress voices of human rights activists, lawyers, journalists, its own members who go against senior officials or against Indians, as has happened with Kulbhushan Jadhav. Kulbhushan Jadhav is a formal naval officer turned businessman who was on a routine business trip to Iran when he was abducted by the Pakistani intelligence. A Pakistani statement claimed Jadhav, who allegedly used the alias Hussein Mubarak Patel, was attached to the Research and Analysis Wing (RAW).

According to an ISPR press release, a Field General Court Martial (FGCM) found Kulbhushan guilty of espionage and sabotage activities and of waging war against Pakistan by fomenting unrest in Balochistan and Karachi. He was tried under Section 59 of the Pakistan Army Act 1952 and Section 3 of the official Secrets Act 1923 and was found guilty of all charges in a secret trial in a military court where no information on charges and evidence was shared.

According to Pakistan Army Act 1952, the Section 59 defines Civil Offence as,

SECTION 59: CIVIL OFFENCES

(1) Subject to the provisions of sub-section (2), any person subject to this Act who at any place in or beyond Pakistan commits any civil offence shall be deemed to be guilty of an offence against this Act and, if charged therewith under this section, shall be liable to be [dealt with under this Act], and, on conviction, to be punished as follows, that is to say,

(a) if the offence is one which would be punishable under any law in force in Pakistan with death or with 1[imprisonment for life], he shall be liable to suffer any punishment 2* * * assigned for the offence by the aforesaid law or such less punishment as is in this Act mentioned; and

(b) In any other case, he shall be liable to suffer any punishment 2* * * assigned for the offence by the law in force in Pakistan, or 1* rigorous imprisonment for a term which may extend to five years or 1* such less punishment as is in this Act mentioned [:]

[Provided that, where the offence of which any such person is found guilty is an offence liable to hadd under any Islamic law, the sentence awarded to him shall be that provided for the offence in that law.

The sub-section further defines the powers of court-martial:

The powers of a Court martial [or an officer exercising authority under section 23] to charge and punish any person under this section shall not be affected by reason of the fact that the civil offence with which such person is charged is also an offence against this Act.

Notwithstanding anything contained in this Act or in any other law for the time being in force a person who becomes subject to this Act by reason of his being accused of an offence mentioned in clause (d) of sub-section (1) of section 2 shall be liable to be tried or otherwise dealt with under this Act for such offence as if the offence were an offence against this Act and were committed at a time when such person was subject to this Act ; and the provisions of this section shall have effect accordingly.

Now, let’s see what clause (d) of sub-section (1) of section 2 of the Pakistan Army Act says:

SECTION 2: PERSONS SUBJECT TO THE PAKISTAN ARMY ACT 1952

CLAUSE D OF SUB-SECTION 1

Persons not otherwise subject to this Act who are accused of__

  • Seducing or attempting to seduce any person subject to this Act from his duty or allegiance to Government, or
  •  Having committed, in relation to any work of defence, arsenal, naval, military or air force establishment or station, ship or aircraft or otherwise in relation to the naval, military or air force affairs of Pakistan, an offence under the Official Secrets Act, 1923, and
  • Raise arms or wage war against Pakistan, or attack the Armed Forces of Pakistan or law enforcement agencies, or attack any civil or military installations in Pakistan; or
  •  Provide or receive funding from any foreign or local source for the illegal activities under this clause shall be punished under this Act.

The Pakistan Army Act sounds like a convoluted document that gives unbridled power and illegitimate secrecy to military courts in Pakistan and these are some of its legal jargons that Pakistan has used against an innocent Indian.

Pakistan has also invoked the Official Secrets Act 1923, a British era document that has been the subject of intense debate in India for its archaic provisions. Both countries have inherited many colonial legacies like this. But Kulbhushan Jadhav’s sham trial and punishment show Pakistan uses it with impunity.

Section 3 of the OSA 1923 defines penalties for spying that can be upto fourteen years of imprisonment and goes on to say,

“It shall not be necessary to show that the accuse person was guilty of any particular act tending to State, and notwithstanding that no such act is proved against him, he may be convicted, if from the circumstances of the case or his conduct or his known character as proved, it appears that his purpose was a purpose prejudicial to the safety or interest of the State.”

Pakistan had established military courts in 2015 with a constitutional amendment to try people for terrorism and related offences committed in civilian areas after the December 2015 Peshawar school massacre and only last month, in March 2017, its parliament voted for another two years extension to them. Since their establishment, the military courts have an absolute record of convictions with no acquittals. According to the Pakistan’s military, the military courts have convicted 274 people in last two years, 161 of them being sentenced to death and 113 to varying prison terms.

India has strongly protested the sentence likening it to murder and claims that the only evidence against Jadhav is his forced confession and is expected to raise the issue internationally to expose the Pakistani sham. Since Jadhav’s arrest in March 2016, India has repeatedly asked for consular access to him but the way he has been arbitrarily and summarily sentenced to death by its Army Chief Qamar Javed Bajwa, tells us that Pakistan was never serious about the Indian demands and about the established norms of international jurisprudence.

©SantoshChaubey