ISLAMABAD: The Supreme Court is requested to direct the government to execute the Indian terrorist Kulbhushan Jadhav if his conviction is sustained and he fails in his appeal, which is pending before the government.
The court is also requested to order the government to decide the pending appeal, filed by Jadhav’s mother, in accordance with law of the land.
Farooq H Naek on Saturday filed a petition under Article 184 (3) earlierm on behalf of his client Muzamil Ali.
The Ministry of Interior, Ministry of Law and Justice and Court of Appeals formed under the Army Act 1952 are made respondents.
The petitioner requested to declare that the order of the International Court of Justice (ICJ), wherein it halted Jadhav’s execution until final disposal of proceedings, lacks a binding force.
The petitioner further added that Jadhav’s trial had been conducted in accordance with the dictates of due process of law and no prejudice had been caused to him by the withholding of the consular access demanded by India.
The petition added that in April, Jadhav’s mother filed an appeal under Section 133 (B) and Section 131 of the Pakistan Army Act 1952 through the Indian High Commission.
The petition, however, argued that without waiting for the outcome of the appeal the Indian government on May 8 instituted a proceeding in ICJ.
“In light of the settled principles of Local and International law the aforesaid Indication (order) by the ICJ does not constitute a binding direction upon Pakistan which is a sovereign state entitled to take due measures to protect its sovereignty, territory and integrity,” stated the petition.
The petition further stated that the constitution initiated with the phrase that sovereignty over the entire universe belonged to Allah alone and the authority to be exercised by the people of Pakistan.
In light of ICJ’s order, the phrase become redundant in the constitution and the superstructure of Pakistani Jurisprudence would once again become subservient to the dictates of foreigners, the petitioner contended.
The petition further stated that upon analysis of the relevant international laws it become lucid that indication rendered by ICJ was not binding upon Pakistan and liable to be ignored.
The petition stated that Pakistan adopted a dualist approach to international law with the exclusive powers to parliament, in accordance with IV Schedule of Federal Legislative list with Article 142, to make laws with respect to external affairs including surrender of criminals and accused persons to governments outside Pakistan.
“Thus it is evident that for any such Treaty on Consular Relations to be binding domestically it has to be passed by an Act of Parliament and incorporated into local law. Since this has not been done and the judgment of ICJ which affect the national security have not been made binding through domestic law the same does not have the stated effect and is not binding,” it added.
“ICJ cannot sit as an Appeal Court over mechanism provided by the domestic law of Pakistan so the indication of ICJ is not binding on Pakistan adding that constitutional protection had already been given to Pakistan Army Act 1952 through 21st and 28th Amendment and proceedings under this Act were deemed to have been in accordance with the due process requirement,” the petition read.
“The sending of an agent (Jadhav) by the Indian nation to sabotage projects of International importance of Pakistan constitutes use of force against the preemptory norms (Jus cogence) of International Law and Pakistan has an inherent right to proportionate self-defense, under international law, by sentencing the perpetrator to death and carrying out the deserved punishment,” it concluded.
