Legal battle launched for Kulbhushan Jadhav

A legal battle is being mounted for the defense of Kulbhushan Jadhav, led by Prof. Bhim Singh of Panther's Party

A legal battle is being mounted for the defense of Kulbhushan Jadhav, led by Prof. Bhim Singh of Panther's Party
A legal battle is being mounted for the defense of Kulbhushan Jadhav, led by Prof. Bhim Singh of Panther's Party

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]S[/dropcap]upreme 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.

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…

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.

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]T[/dropcap]he 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 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.

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.

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]T[/dropcap]he 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.”

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…

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.

[dropcap color=”#008040″ boxed=”yes” boxed_radius=”8px” class=”” id=””]T[/dropcap]he 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.

New Delhi is exploring various diplomatic and legal options, including getting Jadhav’s family to appeal against the verdict.

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.

Sandhya Jain
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2 COMMENTS

  1. 1]
    The story emerging from the ground suggests that Kulbhushan Jadhav was kidnapped from western Balochistan near Chabahar port in Iran by three Afghans who later sold him to some Baloch who were working for the ISI. Jadhav was there on a business trip to inspect some possibilities to export Indian garments to Turkmenistan and other central Asian states.

    He was blind-flooded and brought inside Pakistani occupied Balochistan and sold for US$ 35,000 that was trophy for ISI. He was then shown as a RAW agent captured in Balochistan, who was there to train and help Baloch and create instability in Pakistan. It was all just a grand make-believe show to brainwash Pakistani public and international community to hide their crimes in Balochistan.

    2]
    If the sentence against Kulbhushan is carried out, it will be a travesty of justice. He has not been given due assistance under international law to plead his case. The Pakistani version of the story has been upheld by the military court and death sentence has been pronounced without even granting Indian High Commission access to its citizen alleged to be a spy.

    As per international norms, this is the very minimum requirement for a fair trial. All this shows how desperate Pakistanis are to undermine Baloch struggle at one level and sell their antipathy towards India as legitimate point to the international community on the other.

  2. Kulbhushan Jadhav, legal battle commenced by Prof. Bhim Singh. My take is that Pakistan will like to prolong the agony of the Indian state and keep the civil society on the boil with a view to raising the bargaining level, placate its military establishment which is demoralised after the surgical strike conducted by India and sending out the message to India that it retains the capacity to create problems for her (Not to mention to un-focus the anti government agitation within caused by leaking of Panama Papers & the consequent tussle between Army and the PM) . The more worrisome aspect is the fatwa issued by the Lahore High Court Bar Association that no lawyer would accept the brief in support of KB. The battle is going to be hard and long, but since our case is strong at the end of the day Pakistan shall have to eat crow, as they say.

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