Daily Times

There was a time when the Kulbhushan Jadhav case was a litmus test for our patriotism and those who had an opinion in contrast to general perception were labelled as traitors. However, since regime change in 2018, there has been a change of heart and all the opinion makers, Government and Judiciary seems to facilitate Kulbhushan Jadhav (Jadhav).

Kulbhushan was arrested from Balochistan in March 2016 on account of terrorism related charges. During interrogation by Pakistan’s law enforcement agencies, he admitted his involvement in various attacks in Pakistan, including providing financial support to Baloch separatists. He was tried in military court and sentenced to death in April 2017. In May 2017, India filed an application with the international court of justice against Pakistan highlighting the alleged violations of the Vienna Convention on the part of Pakistan while convicting Jadhav. It is not the first time that Pakistan and India have invited the jurisdiction of the International Court of Justice (ICJ) to resolve their disputes. Pakistan and India were involved in four cases filed before the ICJ and out of those four cases three were decided against Pakistan.  However, one case concerning the trial of Pakistan prisoners of War was resolved as a result of discussion and Pakistan opted to discontinue the proceedings.

We need to introspect as to why our legal and judicial system has been unable to pass through the test of global forums and it has failed to convince the ICJ in all three cases including the recent judgement in Mr. Jadhav case. A critical evaluation of the facts and judgement of the Jadhav case reveals that Pakistan failed to comply with the international procedures designed to deal with such matters. Mr. Kulbhoshan was tried in military court and was accorded death sentence in April 2017, on the charges of espionage, waging war against Pakistan, supporting terrorism, and destabilizing the state. His sentence was confirmed by the Chief of Army Staff.

However, during the entire process, Pakistan being a signatory of Vienna Convention ignored the basic requirements envisaged in the article 36 of the Vienna Convention which requires that a nation arresting or detaining a foreign national to afford the detainee access to his or her consulate and to notify the foreign national of the right of consular access. However, Pakistan overlooked the provision of the article 36 and despite repeated requests of India for the counselor access to Jadhav, we have refused the access to Mr. Jadhav and celebrated it in the media. Moreover, we also failed to comply with the provision of the same convention regarding the rights of detainees. These were the basic points of our failure in the ICJ to prove our case. India pleaded on three grounds that Pakistan failed to:

1.     Inform India, without delay, of arrest and/or detention of Jadhav.
2. Inform Jadhav of his right under Article 36 of the Vienna Convention on consular relations.

iii. Declining access to Jadhav by consular officers of India, contrary to their right to visit Jadhav, while under custody, detention or in Prison, and to converse and correspond with him, or to arrange for his legal representation.

The plain reading of the article of Vienna convention transpires that every foreign national arrested and detained by the other state has a right to enjoy the above-mentioned rights. However, Pakistan refused to extend this right to Mr. Jadhav and denied counselor access, moreover, we have made it conditional to the settlement of the other disputes. The International Court of Justice not only rejected our view but also termed it against the standards of unimpeded conduct of counselor relations.  The court found that Pakistan acted in breach of the obligations under article 36 of the Vienna Convention and made Pakistan liable for wrongful acts of a continuing character and ordered to cease all those acts and comply with the provision of the article 36 of the Vienna Convention by informing Mr. Jadhav without further delay of his rights under the article and allowed Indian consular officers to have access to him and to arrange for his legal representation as per the same article.

The court while allowing remedy to the Indian spy, took in to the consideration of Pakistan’s arguments wherein Pakistan maintained that appropriate remedy in this case would be, at most, effective review and reconsideration of the conviction and told the court that Pakistan domestic legal system provides for an established and defined process whereby the civil courts can undertake a substantive review for the decision of military tribunals in order to ensure the procedural fairness has been afforded to the accused and that its courts are well suited to carrying out a review and reconsideration that gives full weight to the effect of any violation of Article 36 of the Vienna Convention.

The counsel for Pakistan further assured the court that the process of judicial review is always available and High Courts of Pakistan exercise “effective review and jurisdiction” giving as an example of Peshawar High Court where the court points out that respect for the principles of a fair trial is of cardinal importance in any review and consideration.

The court while deciding the matter noted that obligation to provide effective review and reconsideration can be carried out in various ways and shall take all measures to provide for effective review and reconsideration including, if necessary, by enacting appropriate legislation however, choice of means was left out with Pakistan.

The arguments advanced by the counsel for Pakistan regarding the jurisdictions of the courts in Pakistan for effective review against military court decisions stated that the:

1. Jurisdiction of civil courts can be invoked for substantive review of military tribunals.
2. The clemency procedures can act as an appropriate supplement to judicial procedures.

iii. Availability of Judicial review and clemency procedures to Mr. Jadhav

In presence of all the remedies mentioned by the counsel available to Mr. Jadhav against the decision of the Military court. The Government of Pakistan preferred to undermine the existing legal course available to Mr. Jadhav enacted new law “International Court of Justice (Review and Reconsideration) Bill, 2020” which was specially crafted and designed to facilitate Indian spy who was involved in killing of innocent people in Pakistan. The government was so interested that it initially issued an ordinance and then when it was presented in parliament all the government members queued up in line to vote for it. The law minister further misguided the parliament as well as the public stating that the bill was passed in the light of the directions of the ICJ. However, ICJ did not impose any condition regarding enacting new law except asking for effective review and left the choice of means with Pakistan.  After passing of new law to facilitate Indian spy, Government is under the obligation to answer the following questions:

1. Why Pakistan failed to inform the other country timely and denied counselor access. This negligence on our part not only weakened our case against a terrorist but also brought embarrassment for the entire nation.
2. On whose instructions Pakistan was denying access and continuously ignoring the provisions of article 36 of the Vienna Convention?

iii. When Pakistan maintained its stance that our existing system allow review and reconsideration against military courts’ decisions, ICJ left the choice of means with Pakistan for review and reconsideration. Then why did the government detracted from its own stance and undermined our existing legal system and enacted new legislation ignoring the principle of equality to facilitate a terrorist engaged in killings of innocent people.

It is interesting to note that our courts have never been so lenient with our civilians and politicians. They are always in a hurry to convict, disqualify or arrest them. Varied interpretations of laws are made by the superior courts, “Special Monitoring judges” are appointed, written laws are ignored and new precedents are set to convict elected prime ministers. The public and politicians are made to wait for months and years before they are even heard at any forum. Whereas, in the instant case the entire government machinery seems courteous and repeatedly stressing to extend all the rights to Mr. Jadhav to win the trust of Modi. Question arises why rights of the locals are not looked after and given due importance? It appears that our courts treat our civilians and the politicians as the children of a lesser god. This dichotomy and arbitrary behavior of courts have made a mockery of our judicial system.

The Parliament of Pakistan need to fix the responsibility for this negligence and should ask the questions from all stakeholders In Mr. Jadhav case, legal wizards and handlers of this issue ruined the entire case just for not fulfilling the basic requirements of article 36 of the Vienna Convention. Nation must ask that either this act was intentional, or we were unable to understand the provision of article 36. In both scenarios Pakistan faces an international embarrassment. Commander Jadhav’s case was initiated, handled, and decided by our security institution. Despite that majority of the media, politicians and religious parties were busy in calling the elected prime minister as a traitor, Indian agent, and a friend of Modi (India Prime Minister), however, nobody showed a courage to ask question about the severe violation of international law which ultimately brought us at the position where we are left with no option except to undermine our existing legal and judicial system for a terrorist who was working to destabilize our country.

The policy of handling these delicate matters with a cane stick has given us nothing, except embarrassment. It’s high time to revert to basic principles of governance i.e., no one should go beyond their ambit and the role of every institution must be restricted to the boundaries defined in the constitution of Pakistan.

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Abdul Rauf Shakoori is a lawyer based in the USA. He can be reached at abdulrauff@hotmail.com