IHC directs govt to approach India for third consular access to Kulbhushan

A divisional bench headed by Islamabad High Court (IHC) Chief Justice Athar Minallah and comprising Justice Gull Hassan Monday heard the federal government's petition to appoint a legal representative for Indian Navy’s active spy-terrorist Kulbhushan Yadav and directed Pakistan government to approach India for third consular access to Indian spy through Foreign Office.

The case hearing has been adjourned till September 3.

IHC Chief Justice Athar Minallah asked the attorney general of Pakistan to inform the full background of the Kulbhushan Yadav case.

Attorney General of Pakistan (AGP) Khalid Jawed Khan said an ordinance was issued to implement the decision of the International Court of Justice (ICJ) but India wanted to give an impression that the consular access was not being given.

“Pakistan wants to ensure that he fulfils his duty as per the decision of the ICJ,” he added.

AGP said Pakistan does not want to make any decision in a hurry.

Justice Mian Gul Hassan Aurangzeb also inquired to which AGP appraised the court that India has been given consular access to Kulbhushan Yadav twice but India did not accept consular access both times:

“India is running away from the verdict of the justice,” the Attorney General further said. “Pakistan has never violated international law and the country is abiding by all international laws. India wants to seek relief by finding flaws in Kulbhushan Yadav. As per ICJ, an ordinance was issued to give the right of appeal to Indian spy. If a prisoner cannot get a lawyer for himself, the court provides him a lawyer to protect his rights the court should appoint a legal representative for Kulbhushan Yadav.”

AGP further stated: “Commander Yadav’s connection with the massacre of Pakistanis has been proved but Pakistan still gives the right of the transparent trial to Indian spy Kulbhushan.”

He said that ICJ has already rejected India’s request to release Kulbhushan.

“Appeal for mercy before the Army Chief is still pending as the case goes to the International Court of Justice,” the Attorney General of Pakistan said.

“Kulbhushan Yadav was arrested and he confessed to the crime in his statement, the trial was conducted through the Attorney General Army Act and the death sentence was handed down through military court on 12 April 2017 which was confirmed by the Chief of Army Staff,” the Attorney General said.

The Attorney General said, “The Attorney General of India was informed about the ordinance on June 5, 2020. The Attorney General of India was not interested in taking advantage of the ordinance.”

IHC Chief Justice Athar Minallah asked the attorney general why the government brought the ordinance and why the review petition was filed.

It is pertinent to note that in the government’s petition, the federation has been made a party through Secretary Defence and Judge Advocate General Branch GHQ.

The petition stated that India has also refused to avail facility under ICJ (Review and Reconsideration) Ordinance 2020. As per the laws, Indian spy could not appoint a legal representative on his own but only through the Indian High Commission.

The petition pleaded that the court should order to fulfil Pakistan's responsibility as per the decision of the International Court of Justice.

The federal government on July 23 moved the Islamabad High Court for the appointment of state counsel for Kulbhushan Jadhav to implement the ICJ verdict regarding his conviction.

The government laid before the National Assembly on July 28 the ordinance aimed at allowing the Indian spy-terrorist to have consular access in line with the International Court of Justice.

The ICJ (Review and Reconsideration) Ordinance 2020 had been promulgated by the government in May.