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Navigating the Jadhav conundrum

A look back on how Pakistan has so far handled the ICJ decision pertaining to the convicted Indian spy

By Hasnaat Maik |
PUBLISHED June 19, 2021

Despite opposition criticism against legislation pertaining to the case of Indian spy Kulbhushan Jadhav, Pakistan has been successful so far in thwarting all Indian designs against it.

Delhi had intended to approach the International Court of Justice again, but could not so far due to an effective legal strategy developed by the office of the Attorney General of Pakistan.

"In the annals of our short history, I cannot recall any jurist, with the exception of present AGP Khalid Jawed Khan, his consultant Ahmed Irfan and late chief justice Waqar Seth, who has served Pakistan well. It was their finest moment," said a senior lawyer who closely observed the Jadhav case proceedings. He added that the ICJ decision to allow consular access could have been averted if proper strategy was adopted from the beginning.

Arrest and litigation

On March 3, 2016, Jadhav, a serving officer of the Indian Navy working for India’s premier intelligence agency RAW, crossed into Pakistan clandestinely from Saravan, Iran. He was arrested in a counter-intelligence operation in Balochistan’s Mashkel area. Jadhav confessed in custody to coordinating terrorist attacks in Pakistan and was sentenced to death by a military court, prompting India to approach ICJ on May 8, 2017.

The Pakistan Muslim League-Nawaz – in government when India invoked ICJ jurisdiction – left the matter to the military establishment instead to taking the lead in evolving a legal strategy. The establishment arranged for Khawar Qureshi, a lawyer based overseas, to represent Pakistan when India filed a stay application on May 15, 2017. The stay was granted three days later, but by then AGP Ashtar Ausaf Ali was leading Pakistan’s legal team. According to sources, Pakistani officials were never comfortable with Qureshi during litigation. Concern was raised as to why Pakistan did not engage its own counsel like India, which went with renowned lawyer Harish Salve.


India’s case and ICJ decision

India contended Pakistan violated article 36 of the Vienna Convention on Consular Relations, 1963 (VCCR), which grants consular officers “the right to visit a national of the sending state who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation.”

Delhi stated Jadhav was not given consular access during his trial. Pakistan, meanwhile, appointed former CJP Tassaduq Hussain Jilani as an ad hoc ICJ judge to represent the country in the case.

A decision from ICJ came in July 2019. The court accepted Delhi’s plea to allow consular access to Jadhav but turned down its request to annul the convicted spy’s death sentence. Maintaining that Jadhav’s conviction and sentence were not in violation of article 36, it stated that it “finds that these submissions made by India cannot be upheld.”

Even so, the ICJ, for the first time, ruled with 15-1 majority that spies should be provided consular access under the aforementioned article. Jilani was the lone judge to write a dissenting note.

The 42-page ICJ verdict also ruled that Pakistan is under obligation to cease those acts and to comply fully with its obligations under article 36. “Consequently, Pakistan must inform Mr Jadhav without further delay of his rights under article 36, paragraph 1 (b), and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by article 36, paragraph 1(a) and (c),” it stated.

Paragraph (a) states that consular officers shall be free to communicate with nationals of the sending state and have access to them. Nationals of the sending state shall have the same freedom with respect to communication with and access to consular officers of the sending state.


‘Review and reconsideration’

ICJ disappointed India by neither annulling Jadhav’s conviction nor referring his matter for retrial. Instead, it directed Pakistan to take all measures to provide for effective review and reconsideration, including, if necessary, by enacting ‘appropriate legislation’. ICJ also believed that this obligation could be carried out in various ways and left the choice of means to Pakistan. It maintained the stay on the spy’s execution till ‘effective review’.

The court pointed out that respect for principles of fair trial is of cardinal importance in any review and reconsideration, and that, in the circumstances of the present case, it is essential for the review and reconsideration of the conviction and sentence of Jadhav to be effective. The ICJ also noted that violation of rights set forth in article 36 and its implications for principles of fair trial should be fully examined and properly addressed during the review process. “In particular, any potential prejudice and the implications for the evidence and the right of defence of the accused should receive close scrutiny during the review and reconsideration,” it added.


ICJ on Pakistan’s judicial system

In its decision, ICJ noted that, according to Pakistan, its high courts could exercise review jurisdiction. It observed, however, that article 199, paragraph 3, of the Constitution of Pakistan has been interpreted by the Supreme Court as limiting the availability of such review for a person who is subject to any law relating to the Armed Forces of Pakistan.

The Supreme Court and the high courts might exercise judicial review over a decision of the field general court martial on "the grounds of coram non judice, without jurisdiction or suffering from mala fides, including malice in law only" (Said Zaman Khan et al vs Federation of Pakistan, Supreme Court of Pakistan, 29 August 2016). Article 8 of the Constitution provides that any law inconsistent with fundamental rights guaranteed under the constitution was void, but this provision does not apply to the Pakistan Army Act of 1952 by virtue of a constitutional amendment.

The ICJ noted that it was not clear whether a judicial review of a decision of a military court was available on the ground that there had been a violation of the rights set forth in Vienna Convention article 36. It referred to a verdict by PHC ex-chief justice Waqar Ahmad Seth wherein it was held that the high court had the legal mandate positively to interfere with decisions of military courts if the case of the prosecution was based, firstly, on no evidence, secondly, insufficient evidence, thirdly, absence of jurisdiction, finally malice of facts and law. The federal government appealed the decision and the case was still pending at the close of the oral proceedings of the Jadhav case.


Implementing the ICJ verdict

Soon after the ICJ verdict, Pakistan’s legal minds evolved options regarding implementation. Firstly, consular access was given to Kulbhushan. Several ideas were also discussed on how to pursue effective review. The AGP office submitted a proposal regarding promulgation of an ordinance to implement ICJ directives in this regard. Subsequently, the International Court of Justice (Review and Reconsideration) Ordinance, 2020 was promulgated on May 20 last year.

The ordinance read that a foreign national – either themselves or through their authorised representative or through a consular officer of mission of their country – might file a petition before a high court for a review and reconsideration in terms of Section 3 of an order of conviction/sentence of a military court operating under the Army Act 1952. It is also stated that the petition could be filed within 60 days of the promulgation of the ordinance.

The ordinance further read that in deciding the petition, the court would examine whether any prejudice had been caused to the foreign national in respect of their right to defence, evidence and principles of fair trial due to the denial of consular access according to VCCR. If any difficulty arises in giving effect to any provision of the ordinance, the president may pass an order as may appear to him to be necessary for the purpose of removing it.

Jadhav was informed about the promulgation of the ordinance and his legal right for review of the military court verdict against him in line with the ICJ judgment. However, he refused to avail the legal remedy and requested consideration for his mercy plea, which is already pending before the army chief. Later, Pakistan invited to India to avail the legal remedy until July 20, 2020.

In the meanwhile, the federal government moved the Islamabad High Court for appointment of state counsel for Jadhav to implement the ICJ verdict regarding his conviction. Since July last year, a three-judge IHC bench led by Chief Justice Athar Minallah is hearing the matter wherein India’s High Commission was given opportunity to engage counsel for the convicted spy. IHC also appointed senior lawyers Abid Hassan Minto, Hamid Khan and Makhdoom Ali Khan as amicus for legal assistance in general and, in particular, to ensure that the judgement of the International Court is effectively implemented. However, India has remained reluctant to join proceedings for past one year, believing that it would violate its sovereignty if an Indian citizen were put on trial in a Pakistani court.

AGP Khalid Jawed Khan rightly pointed out before IHC that India defended its eight other convicted citizens in the same court. “If the trial of Jadhav [by the IHC] is a violation of Indian sovereignty then why is the trial of eight other prisoners not an equal violation,” he pointed out. Interestingly, IHC ordered the release of all eight.

India gave a fresh response recently but has yet to appoint any counsel to represent Jadhav. IHC has adjourned the hearing until October 5.

A senior government official said ICJ directions to Pakistan signified the international court’s confidence in the independence and integrity of the country’s judiciary. “It came as a shock to India. Worse still for it, Pakistan quickly promulgated an ordinance, which has been enacted now, to carry out the directions of ICJ in letter and spirit,” he revealed. “Having been thus cornered, India is now quibbling about it’s immunity, sovereignty etc, which is not very convincing as in similar other cases Pakistani counsel was engaged for Indian citizens in Pakistan,” he added.

Former additional attorney Waqar Rana noted that the federal government’s measures, including person-specific legislation, did not change India’s aggressive policy. “Their whole purpose behind the case was to isolate and ‘expose’ Pakistan’s legal and judicial system as defective,” he said. He called for Pakistan to lobby for support at the international level with the help of its few friends. “ICJ is essentially an institution whose members decide cases not only on legal grounds but according to perceptions and predictions having political implications,” Rana cautioned.


Political minefield

Last week, the National Assembly passed a bill to ensure Jadhav’s fair trial, a move opposition parties tried to label an ‘NRO’ for the Indian spy. Lawyers with expertise in international law were quick to point out the opposition’s folly, noting that India could create trouble for Pakistan in the Security Council if it did not implement the ICJ decision.

According to them, a state that believes the other side has not performed its obligations under the ICJ judgment can bring the matter before UNSC, which is empowered to recommend or decide measures to be taken to give effect to the judgment. As such, they urged politicians to avoid politics on national security issues.

The lawyers also advised the security establishment to meet all legal requirements in such matters in order to prevent future embarrassment on international legal fronts. They also said that instead of putting burden on China to veto any move in UNSC, Pakistan should work to end Indian conspiracies.