— The Law Society of Upper Canada and Lawyers’ Rights Watch Canada express grave
concern about the threat of disbarment against lawyers in Lahore, Pakistan.
It has come to the attention of the Law Society and Lawyers’ Rights Watch
Canada (“LRWC”) that on April 14, 2017, the Lahore High Court Bar Association
(the “LHCBA”) stated that it will take action against any lawyer who extends
his/her services to Kulbhushan Jadhav, an alleged Indian spy who was sentenced
to death in early April 2017 by a Pakistani military court. The LHCBA’s official
statement, released by LHCBA Secretary-General Amer Saeed Raan, was as
The LHCBA has unanimously decided to cancel the membership of
any lawyer who offers his services to Indian spy Kulbhushan Jadhav.
Secretary-General added that the LHCBA has asked the government of Pakistan not
to cave to any foreign pressure, including that from the Indian government, as
India has declared Jadhav its son and is putting pressure
on the Pakistani government for his release. We demand that the Indian spy who
is involved in playing with lives of Pakistanis should not be spared and the
government (should) ensure his hanging.
According to information received
by the Law Society and LRWC, following a three-and-a-half-month trial, Jadhav
was sentenced to death by a Field General Court Martial in Pakistan on April 10,
2017. He was found guilty of spying for India, waging war against Pakistan,
sponsoring terrorism, and destabilizing the state. Authorities claim his naval
background and the sensitive nature of his case justified the military court
proceedings. However, it is generally accepted that “the jurisdiction of
military tribunals is restricted to offences of a strictly military nature
committed by military personnel.” 
Reviewing international law restrictions on the use of military tribunals, the
UN Working Group on Arbitrary Detention (WGAD) concluded that, “[u]nder
international law, military tribunals can only be competent to try military
personnel for military offences.
The WGAD recommended that “[a]ll sentences issued by military courts should be
reviewed by a civil court, even if they have not been appealed. Military courts
should never be competent to impose the death penalty.”
The right to counsel of every person charged with a criminal offence is
guaranteed by the International Covenant on Civil and Political
Rights (ICCPR) to which Pakistan is a party. The UN Human Rights Committee,
reviewing state duties under the ICCPR, has determined that the right to counsel
is inalienable in capital cases and that a failure by the state to ensure
competent counsel in such cases constitutes a denial of fair trial and a
violation of the ICCPR Articles 2 and 14. In view of these factors it is
imperative that Kulbhushan Jadhav be represented by the best counsel on a legal
aid basis if necessary.
The duty of the Government of Pakistan is clear.
Kulbhushan Jadhav must be provided with senior legal counsel in order to be able
to properly appeal all issues including the jurisdiction of the military court
to determine the charges and to impose a death sentence. Pakistan's Defence
Minister, Khawaja Muhammad Asif, has stated that Jadhav's prosecution followed
due legal process and was conducted in accordance with the country's laws, rules
and regulations. He further noted that under the Pakistan Army Act of
1952, Jadhav is entitled to appeal his conviction within 40 days. None of
these factors displace Mr. Jadhav’s inalienable right to be represented by a
lawyer or Pakistan’s international law obligations to ensure legal
representation, a fair trial before a properly constituted tribunal. Ostensibly,
the LHCBA’s statement to its members is intended to ensure that legal
representation is withheld from Jadhav for the purposes of his appeal, thereby
effectively rendering his right to appeal impotent and meaningless.
Lawyers must be free to fully represent the interests of Mr. Jadhav, to
promote the cause of justice and “uphold human rights and fundamental freedoms
recognized by national and international law” as provided by the United Nations’
Basic Principles on the Role of Lawyers (Principles). The duties of the
Government of Pakistan identified by the Principles are set out in Articles 16,
17 and 18 reproduced below.
Article 16 of the Basic Principles on the
Role of Lawyers states:
Governments shall ensure that lawyers (a) are
able to perform all of their professional functions without intimidation,
hindrance, harassment or improper interference; (b) are able to travel and to
consult with their clients freely both within their own country and abroad; and
(c) shall not suffer, or be threatened with, prosecution or administrative,
economic or other sanctions for any action taken in accordance with recognized
professional duties, standards and ethics.
Article 17 states:
Where the security of lawyers is threatened as a result of discharging their
functions, they shall be adequately safeguarded by the authorities.
Article 18 states:
Lawyers shall not be identified with their clients
or their clients' causes as a result of discharging their functions.
Law Society of Upper Canada and LRWC are deeply concerned about the LHCBA’s
stance on this matter and the corollary effect on lawyers in Lahore. We urge the
Government of Pakistan to comply with Pakistan’s obligations under international
human rights laws, including the ICCPR and the United Nations’ Basic
Principles on the Role of Lawyers.
The Government of Pakistan must
take steps to ensure that Mr. Jadhav is represented by competent counsel and
that those counsel are fully protected both before and after the court
proceedings from disciplinary action by the LHCBA and from attacks and violence
from those who would prefer that Mr. Jadhev be unrepresented. Recently many
lawyers have been murdered in Pakistan for representing unpopular causes or
clients. Protection from and punishment for the murders and other attacks on
lawyers by Pakistan authorities has been alarmingly inadequate. If the
Government of Pakistan cannot ensure both legal representation for Mr. Jadhav
and the safety of his lawyers, he cannot be tried or sentenced in Pakistan.
The Law Society and LRWC urge the Government of Pakistan to:
- Take all steps to ensure that Mr. Jadhav is properly represented by
legal competent legal counsel;
- Ensure that legal counsel for Mr. Jadhav have adequate protections
from intimidation, hindrance, harassment, improper interference, attacks and
- Begin public
education about: the right of all criminally charged persons to legal
representation; the duties of lawyers to act in the best interests of clients;
and, the duty of Pakistan to prevent and punish interference with and attacks on
- In the
alternative, to transfer Mr. Jadhav into the custody of Indian authorities.
*The Law Society of Upper Canada is the governing body
for more than 50,000 lawyers and 8,000 paralegals in the province of Ontario,
Canada. The Treasurer is the head of the Law Society. The mandate of the Law
Society is to govern the legal profession in the public interest by upholding
the independence, integrity and honour of the legal profession for the purpose
of advancing the cause of justice and the rule of law.
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Principles Governing the Administration of Justice Through Military Tribunals,
U.N. Doc. E/CN.4/2006/58 at 4 (2006), Report submitted by the Special Rapporteur
of the Sub-Commission on the Promotion and Protection of Human Rights, Emmanuel
Decaux, to the UN Commission on Human Rights in 2006 [Decaux Principles].
Available at: http://www1.umn.edu/humanrts/instree/DecauxPrinciples.html.