Noted lawyer Harish Salve addressing a press conference in London on Wednesday. Photo/ANI
Noted lawyer Harish Salve addressing a press conference in London on Wednesday. Photo/ANI

Review, reconsideration must take into account Jadhav's right to defence: Harish Salve

ANI | Updated: Jul 17, 2019 23:59 IST

London [UK], July 17 (ANI): India's legal counsel in Kulbhushan Jadhav case Harish Salve on Wednesday said that the review and reconsideration by Pakistan in view of the verdict of International Court of Justice (ICJ) must take into account the potential prejudice caused to him (Jadhav), implications of his evidence, and his right to defence.
"It is only such review and reconsideration where our consulate will not only be allowed to meet him, discuss with him, see the papers, examine the evidence against him but also arrange for his legal representation. And then there has to be a fair trial," said Salve while addressing media persons here.
Salve said: "Pakistan's Attorney General said that their Constitution assures a fair trial. The court has said that you must take all the steps necessary. What steps you take are of your choice respecting the sovereignty of Pakistan."
"They have said that this choice is not a free, unhindered choice. They have used a nice phrase. They have said there is an obligation of result. That result has to be a fair adjudication allowing him consular access," he added.
Salve said that Pakistan's repeated assertions that its existing laws are good enough and Jadhav can get nothing beyond has not been accepted.
"The court has said that you will take all steps necessary including legislative measures. I think I see the judgement with a sense of relief, with a sense of gratification and of course they have said till all this is done, there is no question of executing him," Salve said.
He further said that if the retrial is held in the military court, it won't meet standards.
"They (ICJ) said that a fair trial in accordance with the Pakistan Constitution. If it is back in a military court with the same rule where outside lawyers aren't allowed, we aren't allowed. Access isn't given. The evidence isn't given. It won't meet standards," he said.
"So either, they will have to amend the military law and they are laying themselves open to the challenge that the trial was not a fair trial as contemplated by the court," added Salve.
Trying to allay concerns over the judgement being binding or non-binding, Salve said, "What makes you say it is not binding? What do you mean by a binding judgement? If the Supreme Court gives judgement and the Government of India says I refuse to follow it, what can the SC do?"
"The court neither has the power of the sword nor of the person. Their power is the power of public opinion. If the ICJ verdict is disobeyed, we can take measures including by way of sanctions at the United Nations," he added.
Salve, however, added that he was sure that Pakistan will not go that way.
"Now, I am sure Pak will not go that way. But, if some country against whom the judgement is given, if it wants to behave, rogue, there are measures available. I am sure Pakistan won't go that way. At least I hope so," Salve said.
Terming the verdict as the victory of the rule of law, he said: "The victory is the victory of the rule of law. When it is a victory of rule of law over the state's tyranny, I consider it a big victory. What next for Jadhav. Next is consular access. Hopefully, we will be able to secure...maybe I am getting ambitious.....secure a meeting with his family which is unhindered."
Salve said that the court has rejected Pakistan's argument that the Vienna Convention excluded spies for counsellor access.
"It was one of their main arguments that a spy was not allowed consular access. We relied on our fundamental argument that the more serious the allegations, the greater the need for procedural safeguards. Secondly, all this the court has to see are allegations of being a spy. What is in question is the process by which you will prove whether he is a spy or not," Salve said.
Asked about Pakistan kidnapping Jadhav from Iran, the senior lawyer said: "Unfortunately, we do not have an international court yet where we could sue countries for kidnapping. The consular access has to be given. If he is not given, that is in violation of the order of the ICJ. We can go back to the ICJ and seek directions. If a country brazenly defies ICJ verdict, there are other ways," he said.
"We expect Pakistan to do whatever it has to do including appropriate legislative measures to guarantee a fair trial. So, Pakistan's conduct is under watch and if what they do is another farcical attempt, we will be back in the Court," Salve warned.
ICJ on Wednesday asked Pakistan to review its order of death sentence awarded to Jadhav on alleged charges of espionage and conspiracy against Pakistan.
The 16-member Court on Wednesday unanimously found that it had jurisdiction to go into the case under the Vienna Convention to entertain the application filed by India on May 8, 2017. By 15 votes to one, it rejected the objections raised by Pakistan to the admissibility of India's petition.
The Court by 15 votes to one also held that by not informing Jadhav without delay of his rights under the Vienna Convention on consular relations, Pakistan breached the obligations incumbent upon it under the provision.
The Court also found that by not notifying the appropriate consular post of India in Pakistan without delay of the detention of Jadhav and thereby depriving India of the right to render the assistance under the Vienna Convention to him Islamabad has breached the obligation incumbent upon it.
The Court held that Pakistan is under obligation to inform Jadhav without further delay of his rights and to provide Indian consular access to him under the Vienna Convention.
The ICJ found that Pakistan acted in breach of its obligations of Vienna Convention by not informing Jadhav of his rights under Article 36, by not informing India without delay the arrest and detention of Jadhav and by denying consular access to him to arrange for legal representation.
However, the international court rejected India's submission that it declares the sentence handed down by Pakistan's military court as violative of international law and the provisions of the Vienna Convention.
On the other hand, the Court also concluded that none of Pakistan's allegations relating to abuse of rights by India justified breaches by Pakistan of its obligations under Article 36 of the Vienna Convention.
"Pakistan's arguments in this respect must, therefore, be rejected," the Court held.
Referring to the remedies sought by India, including a declaration that the sentence of Pakistan's military court is violative of international law and Geneva Convention, the Court considered that the breaches by Pakistan in this regard constituted "internationally wrongful acts of a continuing character." (ANI)

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