As Pakistan gears up to take up Kulbhushan Jadhav's case in the International Court of Justice (ICJ) on June 8, 2017, a Pakistani lawyer has taken the matter of ICJ's jurisdiction to Pakistan's Supreme Court, seeking legal endorsement of death sentence, awarded to Kulbhushan Jadhav by Pakistan's military courts.
Pakistan is in process of formulating on what it calls, a forceful response to India.
The petitioner, Advocate Muzamil Ali has also asked the Supreme Court of Pakistan to give a declaration that the order of ICJ, staying the execution of Kulbhushan, does not hold any binding on Pakistan and that it does not affect the case under the country's domestic law.
The petition has been filed under Article 184(3) of the Constitution of Pakistan, making the Ministry of Law and Justice, Federal Government and the court of appeal constituted under Army Act 1952, as respondents.
ICJ DECISION NOT BINDING ON PAKISTAN
The death sentence of Jadhav has been given by the military courts, who have been established by the Pakistan Parliament through a constitutional amendment. The parliament recently gave the courts a two-year extension and has primarily focused on dealing with cases of terrorism.
The case, filed in the Supreme Court, seems to be an attempt to endorse Jadhav's case under the country's legal system also as the petitioner has asked the Supreme Court to declare that Jadhav's trial and verdict was given in accordance with the law in Pakistan.
"In the light of the settled principles of local and international laws, the ICJ's decision does not constitute a binding direction upon Pakistan which is a sovereign state and entitled to take due measures to protect its sovereignty, territory and integrity" read the petition.
The petitioner also seeks declaration to confirm that no prejudice has resulted from withholding the consular access demanded by India, adding that Vienna Convention does not apply on state-sponsored terrorism.
"Vienna Convention on Consular Relations cannot be applied to instances of state-sponsored terrorism. Jadhav was admittedly a RAW agent and conducting anti-state activities at the behest of the Indian government. He was acting as an agent of the state of India and not as a national of India" read the petition.
The petitioner has also questioned Pakistan government's "dualist" approach to the case and shared objections on the ICJ order.
Referring to the March 2017 declaration, stating that ICJ cannot enforce its jurisdiction on Pakistan in cases related to Pakistan's national security, the petitioner questioned on how could ICJ maintain that it had jurisdiction, terming the treatment of ICJ as "discriminatory".
As per the petitioner, an International Law cannot or does not become part of the domestic law until it is sanctioned through the domestic legislation system.
AFTER ICJ EPISODE, HANG JADHAV
The petitioner has also stated that Pakistan has already asked for a re-hearing of Jadhav's case and is expected to take up the matter of jurisdiction and early hearing with the ICJ on the June 8, 2017 in the Hague. And for this reason, Pakistan should not take more time in executing Jadhav, if the case is rejected by the ICJ over jurisdiction constraints.
"The people of Pakistan have the right to retribution against those who carry out subversive activities against their beloved country and this right far outweighs a fanciful requirement to provide method of disseminating information to convicted terrorists," said the petition.
LEGAL COVER TO A MILITARY COURT DECISION
The petition seems to be in line with the statements from Pakistan's official outlets, who have maintained that Jadhav's fate will be decided as per the law in Pakistan and that ICJ verdict does not impact or change the position of Jadhav's case.
However, it also seems that as Jadhav's case has been treated under the Military Act and tried under the military courts, who have been established by the parliament and not by the Supreme Court of Pakistan, attempt is being made to give legal cover to the case through orders of the Supreme Court of Pakistan.
These orders will write-off any reservation that might prevail or any discrepancy, in relation to the March 2017 declaration.
It should be noted that ICJ is the highest court of justice and Pakistan's Supreme Court, comes under the authority of the ICJ. While military courts carry with them, a parliamentary protection, achieved through a constitutional amendment, which does not fall under the ICJ.
Which is why, the question on ICJ jurisdiction with reference to the March 2017 declaration, and Jadhav's death sentence, coming through a military court, can weaken Pakistan's case as military courts and the Supreme Court walk parallel lines with different protective shelters.
With the current petition seeking Supreme Court declaration on Jadhav's case in focus, a Supreme Court order will endorse the military court verdict and bring it under the constitutional ambit along with the already existent parliamentary entitlement.
The Supreme Court order will also enforce the direct application of March 2017 declaration on the ICJ hearing, where Pakistan will be raising the issue of jurisdiction and seeking ICJ's rejection of India's contention under the same reference.
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