ISLAMABAD - The Supreme Court of Pakistan has been approached on Saturday against the International Court of Justice (ICJ)’s order assuming its jurisdiction in case of Indian spy Kulbushan Sudhir Jadhav.

According to ISPR’s press release issued on 10-04-2017, Jadhav was arrested on March 3, 2016 through a counter-intelligence operation from Mashkel, Balochisan. He was tried by Field General Court Martial under the Pakistan Army Act and awarded death sentence in March this year, which was confirmed by Chief of Army Staff. Jadhav mother on April 26, 2017 has filed an appeal under Section 133 (B) of Pakistan Army Act, 1952.

Muzamil Ali advocate has filed the petition through Farooq H Naek in the apex court under Article 184 (3) of 1973 Constitution, saying that Jadhav was awarded death sentence after due process of law.

The petitioner made federation through the Secretary Ministry of Interior, Secretary Ministry of Law and Justice and Court of Appeal constituted under Army Act 1952, GHQ, Rawalpindi, as respondents.

He stated that the ICJ’s decision portrays itself to be binding and attempts to destroy the sovereignty of Islamic Republic of Pakistan. It has hurt the people of Pakistan at large and is violative of fundamental rights enshrined in the 1973 Constitution, he added.

The petitioner urged the apex court to declare that the indication/order of the ICJ in Jadhav case dated 18-05-17 lacks the binding force. He also prayed the court to also declare that the trial of Jadhav has been conducted in accordance with the dictates of due process of law and no prejudice has been caused to him by withholding of consular access demanded by India.

He told the top court to direct the respondents to ensure that any pending appeal/petition by or on behalf of Kulbushan Sudhir Jadhav be decided in accordance with the domestic law of Pakistan. He further prayed the court to direct the respondents that if the appeal/petition of Kulbushan Jadhav fails then the punishment awarded to him may be carried out forthwith and the same may be executed without ado.

Farooq H Naek submitted that a number of cases were cited in the ICJ judgment in support of assuming the jurisdiction, however, none whatsoever pertained to espionage or state sponsored terrorism such as in the instant case.

The ICJ order stated: “In all such cases, the court always indicated that the respondent state should not execute the person whose consular’s right was at state in the proceedings before the court, and the respondent state should inform the court as to the measures taken in the implementation of the order.”

The petitioner said that people of Pakistan have a right of retribution against those who carry out subversive activities and his right far outweighs a fanciful requirement to provide an information dissemination method to the convicted terrorists.

The petitioner said the indication rendered by the ICJ is not binding upon Pakistan and liable to be ignored. He submitted that Pakistan adopts a dualist approach to international law, given in Entry 3 Part 1 of Federal Legislative List, Fourth Schedule read with the Article 146 of the Constitution which gives exclusive power to the parliament to make laws with respect to external affairs.

“Any treaty on consular relations to be binding domestically has been passed by an act of Parliament and incorporated into local law and since this not been done therefore the ICJ judgment, which affect the national security, have not been made binding through domestic law and the same does not have the State effect and is not binding,” he said.

The petitioner urged that it also ought to be held in Pakistan that the local law, especially those pertaining to national security take precedence over Treaty Obligation unless the obligations have been incorporated into local law through the Parliament which reflects the will of the people.

It asked that treating the Treaty Obligation above local law without incorporation is in reality a blatant attack on parliamentary sovereignty and an attempt to give legislative powers to the executive, through ratification of treaties, which was/is not envisioned by the Constitution of Pakistan. It per se violates the basic structure of the Constitution recognised by the judgments of the apex court.

The petitioner contended that Pakistan has examined the case of provision of consular access to Jadhave on merits and then refused to allow the same therefore the respondents have acted in accordance with the treaty obligation and are not bound by the ‘Indication of the ICJ’.

It states that the ICJ treatment to accept India’s petition is discriminatory and lacks the force of justice required to be binding.