'No right to appeal for Kulbhushan Jadhav': ICJ only granted consular access, Pakistan SC told

The Pakistani Supreme Court was told on Wednesday that Indian national Kulbhushan Jadhav was never granted the right to appeal his conviction because the 2019 ruling by the International Court of Justice (ICJ) only required consular access, not a legal right to challenge his sentence, the Dawn reported.

Pak defence ministry counsel Khawaja Haris Ahmed, appearing before a seven-judge constitutional bench, said the ICJ ruling did not obligate Pakistan to provide Jadhav, who was convicted of espionage and terrorism, with an automatic right to appeal. “The ICJ verdict addressed only the consular access issue under Article 36 of the Vienna Convention. It never directed Pakistan to extend appeal rights,” he told the court.

The bench is currently hearing 38 intra-court appeals, including from the federal and provincial governments, against the Supreme Court’s October 2023 judgment that struck down military trials for civilians involved in the May 9 riots.

Responding to criticism that Pakistani citizens convicted by military courts after the May 9 violence are not being given the same appeal options as Jadhav, Haris argued that Pakistan’s 2021 ICJ (Review and Re-consideration) Act was a “unique jurisdiction” created specifically for compliance with the ICJ ruling, not a general legal provision.

The Dawn reported Justice Muhammad Ali Mazhar pointed out that the ICJ law stemmed from earlier Pakistani court rulings like the 2017 Said Zaman Khan case, which had expanded the rights of the accused. Justice Musarrat Hilali added that the Said Zaman ruling, initially contested by the government, was eventually cited in Pakistan’s defence before the ICJ.

The case of Jadhav, a former Indian Navy officer, remains one of the most high-profile legal controversies between India and Pakistan. Captured in Balochistan in 2016, Jadhav was sentenced to death by a military court in 2017. India moved the ICJ, which ordered Pakistan to grant him consular access but stopped short of overturning the conviction.

Attorney General Mansoor Usman Awan is expected to weigh in on whether Pakistani civilians tried in military courts post-May 9 should be allowed to appeal, a decision that could have broader implications for the ongoing constitutional debate.

Justice Jamal Mandokhail pressed the government on whether military court proceedings can begin without filing a formal FIR. The counsel replied that under Section 157 of the Pakistan Army Act, a court of inquiry can initiate proceedings and no FIR is needed.