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ICJ stays death sentence; defiant Pak obliges

| | in Bhubaneswar

Significantly, the member-States of the United Nations Organization (UNO) have collective responsibility to respect the decision and directives of the International Court of Justice (ICJ) and safeguard human rights guaranteed by the Universal Declaration of Human Rights (UDHR) Charter-1948.

Observance of human right norms is to create a climate of human rights culture across the nations to establish peace, harmony and sense of brotherhood. Therefore, the dicta of the UN charter speaks in volume that if there is infraction of human rights in any manner, the ICJ in terms of international law would seize the same and settle the issue.

Needless to say, there are many international protocols, instruments and charters of the UNO to which many countries are signatories and as such they are bound by the same. 

In this backdrop, recently a Military Court of Pakistan passed death sentence on Indian national, Kulbhusan Jadav, a former officer of the Indian Navy on the allegation of espionage, terrorism and sabotage, etc. On the face of the charge framed by Pakistan, the unfortunate part of the story is that Kulbhusan was not given any opportunity to contact with our diplomatic mission in Pakistan and no legal counsel was also provided to him by our diplomatic office at Rowlpindi due to total inaction of the Pakistan Government in spite of repeated request by the Government of India. It is worthy of mention that against this ex parte decision of the military court, on 16 occasions India requested Pakistan to provide the charge-sheet and relevant papers against Kulbhusan but Pakistan paid deaf ears. Pakistan openly violated the Vienna Agreement-1969 which was operational in 1980. Both Pakistan and India being signatories to the accord are bound to adhere to the terms and conditions. The agreement provides that in case a foreign national is charged of any criminal offence, he must be given all consular opportunities to contact his country’s diplomat to defend himself. This has not been done in case of Kulbhusan and he was tried by the military court behind the back which is held to be a ‘Kangaroo’ Court trial.

 Briefly speaking, the trail was a mockery and caricature of justice. It has not been explained by Pakistan as to why Kulbhusan was not tried in the open court of law of Pakistan, competent to deal with such case.

India, therefore, approached the ICJ craving for justice to Kulbhusan. Pakistan also entered appearance before the ICJ with a battery of lawyers. After hearing, the 11- member bench of ICJ gave interim direction to Pakistan in terms of Vienna Convention not to execute the death sentence till the case is heard and decided on merit. The verdict of the ICJ is a welcome step in the international arena to give justice to a person who has been wronged by Pakistan guilty of violation of principles of natural justice and human rights norms. The ICJ has made it clear at the hearing that the way in which Kulbhusan was arrested and brought to Pakistan is not only controversial but it is shrouded in mystery. The court also pointed out that the stand taken by India is justified to come before the ICJ seeking for justice and to establish its diplomatic rights under Vienna accord which was denied to its national Kulbhusan.

The plea of Pakistan that Kulbhusan as an agent of Research and Analysis Wing (RAW) of India was engaged in espionage and acts of terrorism in Pakistan and Kulbhusan made confessional statement in this regard which has been recorded in video is not a acceptable proposition in law. The reason is that Kulbhusan while in custody allegedly made such confession, which is not admissible in evidence. This position of law is well-settled in the criminal justice system of any civilized country across the globe. Over and above, it is not explained as to why Pakistan did not place the charge-sheet in the sessions court of competent jurisdiction for trial of Kulbhusan on the charge of treason and a military court was chosen by the Pakistan Government. This is highly suspicious and mala fides can be attributed to the conduct of Pakistan.

To reiterate although Kulbhusan was arrested and brought before the military court, no consular facilities were given to Kulbhusan at the outset and also thereafter to contact with India’s High Commission. Therefore, Pakistan is guilty of not affording the right to legal aid, right to counsel and right to defence to Kulbhusan which are legal rights of a prisoner in any part of the world. Thus Pakistan openly violated the Vienna Convention. The accord stipulates that if a foreign national is arrested and wants to pass on information to his country, he should be given opportunity forthwith to contact his embassy / high commission, even by fax.

The way in which Pakistan dealt the charge framed against Kulbhusan is contrary to all principles of natural justice and fair-play. The cardinal principle of jurisprudence is that ‘no person shall be condemned unheard and all reasonable opportunity must be given to a person of being heard’. That has not been observed by Pakistan and there was no explanation even before the ICJ in this regard.

Significantly, although mother of Kulbhusan, Avantika Jadav requested the Pakistan Government to go and meet his son, it is strange and suspicious that Pakistan sat over the matter. The Ministry of External Affairs in India also deplored the attitude of Rowlpindi.

It is worthy of mention that although Pakistan openly told the comity of nations that he will not abide by the decision of the ICJ, curiously enough, Pakistan very recently filed petition before the ICJ praying to hear the case of Kulbhusan on merit within six months. Pakistan also said that it will not execute the death sentence till the legal remedy of Kulbhusan is exhausted of filing of mercy petition before the President of Pakistan, praying for clemency. Concluding, Pakistan as a member State of the UNO and signatory to the Vienna accord along with 114 countries is bound under the international law to obey the decision and direction of the ICJ which would ultimately decide the fate of Kulbhusan in the long run.

(Das is formerly Professor of Law, Lal Bahadur Shastri National Academy of Administration, Mussoorie. He lives at 205, Sahid Nagar, Bhubaneswar-7, Mob: 9437022723) 




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