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National

May 19, 2017

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Yadav case: Indian judge should have recused himself

Yadav case: Indian judge should have recused himself

 ISLAMABAD: The International Court of Justice (ICJ) applied the top gear while dispensing justice on the Indian request relating to the proven, convicted Indian spy Commander Kulbhushan Sudhir Yadav, who had caught red-handed by Pakistan’s law enforcement agencies.

Additionally, it was clearly immoral and unethical for an Indian judge of the ICJ to be part of the court while dealing with the request filed by his home country. Only fools would expect that he would do justice in such a matter, given the extent of hostility between Pakistan and his native home.

Justice Dr Dalveer Bhandari wrote his own ‘declaration’, according to a press release of the ICJ. Neither did he deem it fit to recuse himself from hearing this application nor was he asked by other ICJ members to stay away from such proceedings. Thus, no justice was done as far as Dr Bhandari’s judgment is concerned.

He became member of the ICJ in April 2012 and will hold this position till February 2018. Before his appointment, he was a judge in the higher Indian judiciary for more than 20 years. He served as a senior judge in the Supreme Court of India. He has been an Executive Member of the International Law Association, India Chapter, since 1994. He was unanimously elected as President of the India International Law Foundation in 2007 and continues in that position. He served as a judge in the High Court of Delhi (a premier High Court in India) and then was theChief Justice of the Bombay High Court. Justice Cançado Trindade who belongs to Brazil also wrote his own note, which was described as the concurring opinion.

The top speed the ICJ observed in hearing and disposing of this case is evident from the timeline. India filed its request for indication of provisional measures on May 8, 2017, and the same day that the ICJ initiated proceedings against Pakistan in a dispute concerning alleged violations of Article 36 of the Vienna Convention on Consular Relations of April 24, 1963 with respect to an Indian national, Yadav, sentenced to death in Pakistan. And on the tenth day of the filing of this request, a decision was handed down. Surely, justice is not done at this speed in any country of the world, not even in countries to which the ICJ judges belong.

In its order indicating provisional measures, which was adopted unanimously, the ICJ stated that the government of Pakistan shall inform it of all measures taken in its implementation. It further decided to remain seized of the matters which form the subject of the order until it has rendered its final judgment.

The ICJ concluded by indicating the following measures: Pakistan shall take all measures at its disposal to ensure that Yadav is not executed pending the final decision in these proceedings and shall inform the court of all the measures taken in implementation of the present order. The court also decided that, until it has given its final decision, it shall remain seized of the matters which form the subject-matter of this order.

In his declaration, Dr Bhandari agreed with the ICJ decision to indicate provisional measures. However, he wished to place on record his views concerning the requirements for indicating provisional measures in more detail. He started by outlining the facts pertaining to India’s application instituting proceedings as well as to India’s request for provisional measures. Subsequently, he discussed the four requirements for the indication of provisional measures: (i) prima facie jurisdiction; (ii) plausibility; (iii) real and imminent risk of irreparable prejudice; and (iv) the link between the rights claimed on the merits and the provisional measures requested.

Concerning the facts of the case, Bhandari underscored the uncertainty surrounding the circumstances in which Yadav was arrested. He made clear that the parties do not agree as to where Yadav was arrested, whether within or outside Pakistan. He stressed the diplomatic intercourse between the parties relating to India’s consular rights with respect to Yadav.

Despite thirteen Notes Verbales sent by India to Pakistan, Pakistan has not communicated to India either the charges against Yadav, or the documents of the proceedings against him, the judge wrote exposing his bias against Pakistan.

He also outlined the court proceedings in order for Yadav to obtain a revision of his death sentence or to be granted clemency. It is currently not clear whether any of these domestic remedies have been triggered by Yadav himself, while it is known that his mother has filed, in an act of desperation, both for appeal under Section 133 (B) of the Pakistan Army Act 1952, and for clemency under Section 131 of the 1952 Act.

Bhandari emphasised that Pakistan’s denial of consular access has determined a situation in which India has no direct knowledge of the charges against Yadav as well as of the proceedings against him in the Pakistani military court.

 

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