Reflections on a verdict

Indian spy Kulbhushan Jadhav was back in the news a couple of weeks back. The International Court of Justice (ICJ) was ruling on India’s complaint against Pakistan, claiming breaches of the Vienna Convention on Consular Access.

Commander Jadhav – as Pakistan’s representatives called him during the hearing – was not on trial in the ICJ. The state of Pakistan was. And how did it fare? Unsurprisingly, two very different stories emerged from the two sides. Both have claimed victory. Both are being disingenuous.

India succeeded in establishing that Pakistan violated the convention by failing to inform Jadhav of his right to consular access in a timely manner and by failing to provide such access. Pakistan did not at any stage concede that Jadhav was entitled to such access, and also resisted the admissibility of India’s claim before the ICJ. It lost both on the issue of admissibility and on the issue of violation of the Vienna Convention.

India’s claim for relief was that the remedy for such violation was the acquittal and return of Jadhav or his retrial by a civilian court. It is not clear why India made such a claim given the past precedents of the ICJ and the restricted scope of its jurisdiction. It was a risky attempt to get the ICJ to enter unchartered and dangerous waters. As expected, it failed and Pakistan’s submission that at best what could be granted in the event of any finding of a violation was “review and reconsideration” succeeded.

What did India gain by asking for the unattainable? Not much it seems. In fact, the result of this ambitious strategy is that Pakistan can state that India’s claim for relief was denied and the ICJ decision has left it to Pakistan to decide how to provide for the remedy of “review and reconsideration”. That is at least partial success. On this side of the border it has been construed as an endorsement of Pakistan’s judicial system, including trial by military courts. Yet, the harsh reality for Pakistan is that the decision unequivocally holds that it violated international legal commitments.

The need of the day is for honest and sober introspection. The state must learn from its mistakes. Part of the learning process involves an analysis of what went wrong. Matters involving international law must be carefully considered by relevant experts and decisions taken after legal advice. The Pakistani side has welcomed the decision of the ICJ and pledged compliance. This indicates that there was no national security imperative that led to the denial of consular access. One wonders, then, what the reason was for denying consular access in the first place. It seems mistakes were made. How the actual decisions were taken needs to be carefully reviewed to ensure such missteps are not repeated.

For any state and its people it is difficult to be critical of positions taken – even more so when a matter involves a perceived enemy. But critical self-evaluation is necessary if progress and improvement are to be possible. If we can acknowledge that fact it will mean a better future for all.

It is pertinent that Pakistan relied on the fundamental human right enshrined in Article 10-A of its constitution before the ICJ. Pakistan asserted that Jadhav was entitled to this fundamental right to due process and fair trial which is available to all persons regardless of nationality or citizenship. Pakistan also relied upon a decision of the Peshawar High Court last year where several individuals convicted by military courts had their convictions quashed by the high court in exercise of its constitutional jurisdiction under Article 199.

Pakistan’s position before the ICJ was that under the prevailing legal regime Jadhav would have a remedy before civilian courts to challenge his conviction and sentence. The same remedy is available to anyone, as shown in the Peshawar case. Decisions of military courts are judicially reviewable. However, the grounds of review are limited. For a review to succeed, it must be shown that the decision was in bad faith or without jurisdiction or in excess of jurisdiction. This is not a full right of appeal but some argue that it is effectively similar.

The ICJ, for its part, notes in its decision that “it is not clear whether judicial review of a military court is available on the ground that there has been a violation of the rights set forth in …the Vienna Convention”. It has ordered that the “review and reconsideration” of the conviction and sentence must be “effective” – which does not mean that Jadhav must win after the review and reconsideration. The conviction and sentence may both stand after a fair review and reconsideration.

What has to be visible to the ICJ is what it defines as a fair opportunity for Jadhav and, it seems, the court expects us to consider the impact or otherwise on Jadhav of the initial denial of consular access. The Pakistan side seem to have suggested that this will be considered given the reliance on Article 10-A. In any case, our government and state authorities must proceed with caution.

The writer is an advocate of the Supreme Court and a barrister at law.

Email: a.hosain@lma-eh.com