Daily Times

It was hilarious to find Pakistan and India at the same time proclaim the Jadhav judgment as a victory of its stance. India described the judgment as a complete vindication of its assertions on every issue, esp., the court’s direction to Pakistan to provide the Indian consulate with access to Jadhav. Pakistan, on its part, claimed that the court accepted Jadhav as a terrorist and rejected the Indian submission to direct his release and repatriation to India. Incidentally, this is not a one-off celebration of its kind. The same thing happened during the crisis arising out of the Pulwama incident early this year. Pakistan claimed victory on the ground that it had downed two Indian planes and that the Indian surgical strike was an outright damp squib. India on its part celebrated the event asserting that its pilots had killed hundreds of terrorists in a surgical strike and shot down a Pakistani F16 plane. If we go a bit in the past, Pakistan, in the 2007 Baglihar award, claimed victory on the ground that out of the four Pakistani demands, the arbitration court accepted three, while India asserted its win on the ground that on the core issue of drawdown flushing the court had favoured it. In all these cases, it is obvious that one of them was, in Churchill’s words, guilty of ‘terminological in exactitude’. We know that each country proclaimed success for domestic reasons even where it had lost the case. This is understandable but the danger is that the party which has actually lost, but is claiming victory, may actually start believing in its own rhetoric and fail to properly analyze the reasons of its defeat and hence fail to learn any lesson from it.

Take the Jadhav case as an example. It is true that India had asked the court for the annulment of the conviction and sentence by Pakistan’s military court and the release and repatriation of Jadhav to India. The court rejected these submissions and accepted Pakistan’s contention that it is not entitled to rule on them as it is not a court of appeal against decisions by domestic courts of a country. This was a defeat for India. Why did India make these submissions? We do not know and any speculation is uncalled for. In hand sight, the Indians must be ruing the decision to do so because their rejection gave Pakistan something to celebrate and claim victory. However, the real Indian submission was to seek,on the basis of the Vienna Convention, consular access to Jadhav which Pakistan had refused (and which landed the case in the court) on the ground that the Vienna Convention did not cover it because Jadhav, according to the Bilateral Agreement of 2008, was a spy and that the latter agreement enjoyed primacy over the Vienna Convention. The court rejected Pakistan’s argument and directed it to allow consular access to India. Let’s be clear that the court did not rule on the question whether or not Jadhav was involved in espionage activities.

The court’s verdict demonstrates that we do not deal with certain state matters professionally. It is a serious indictment of Pakistan Foreign Office. However, it should not come as a surprise because the blue-eyed foreign service officers do not take the legal wing seriously

What do we learn from the court’s ruling? First, the Pakistan Foreign Office suffers from serious shortcomings. Consider the following. A perusal of the court’s judgment shows that the Foreign Office did not consult its legal wing as to Pakistan’s obligations under the Vienna Convention and if it did, either the opinion was unsound (which is quite unlikely) or it was disregarded. This is so because the court found that Pakistan breached its obligations to inform India ‘without delay’ of the arrest of Jadhav; to inform Jadhav ‘without delay’ of his rights; to give India consular access to Jadhav on the ground that he was a spy and making its grant subject to fulfilment of certain conditions. The court also declared that the Vienna Convention covered the case of a spy and that it enjoyed primacy over the Bilateral Agreement. The court’s observation that Pakistan was guilty of ‘international wrongful act of a continuing character’ and directing it to now inform Jadhav of his rights under the Vienna Convention added insult to injury after finding Pakistan culpable.

The court’s verdict demonstrates that we do not deal with certain state matters professionally. It is a serious indictment of Pakistan Foreign Office. However, it should not come as a surprise because the blue-eyed foreign service officers do not take the legal wing seriously. They think that people manning it are simply incompetent and that they do need their advice. They think that they know about international law more than these experts. Had the Foreign Office acted professionally, the case would not have ended at The Hague court and we would have been spared the humiliating pronouncements by the court and the not inconsiderable foreign exchange that we spent on it. The lesson is that Foreign Office should jettison its ‘Mr. know all attitude’ and always seriously consult its legal wing when needed; and if there are really incompetent individuals manning it, it should replace them with competent ones. Going beyond the Foreign Office, honestly speaking this lack of professionalism is pervasive in the government generally as attested by the fact that Pakistan has lost a series of cases in recent years. We handle cases so casually from the start that by the time we assign them to lawyers they are not in a position to win them for us.

Finally, a word about the hiring of foreign lawyers to represent Pakistan at international for a. We invariably always opt for them. There are two reasons for it. First, we do so because we lack trained manpower in the given field. Second, we think that only foreign lawyers can win us cases. We pay them handsome remuneration in foreign exchange. Let us take the example of the Baglihar and Kishenganga dam cases where we hired a British lawyer. We paid him $ 2000 per hour and the billing started from the moment he got into his carto go to his office. Imagine the size of the bill as the case spanned over several years. Compare this with India which makes it a point to hire Indian lawyers. We do not have information as to the remuneration it has paid them in these cases. However, we know that in the Jadhav case their lawyer charged just one Indian rupee. It is high time that we dispense with foreign lawyers but obviously before doing so we should make a roaster of lawyers having requisite competence in his or her specialized field. If we do not have such expertise in the country, we should identify potential candidates for the purpose and associate them for training with foreign lawyers that we hire in different cases.

The writer is a former dean of QAU and author of the book ‘Dissenting and Separate Opinions at the ICJ’