Leave it to the judges

However you want to sugarcoat it, Pakistan lost at the ICJ. India’s application for provisional measures was resisted by Pakistan. The agent representing Pakistan suggested that the court could hold an expedited hearing that would enable a final decision from the court prior to Pakistan’s domestic legal process concluding.

This suggestion was meaningless without an undertaking from Pakistan that Jadhav would not be executed until such decision. In its order, the court noted that no such assurance had been given, and rejected Pakistan’s argument of lack of urgency.

Given the reaction to this defeat at the interim stage, one can perhaps understand why the Pakistan team was reluctant to give any sort of undertaking which may be construed as a concession to India. Allegations of complicity and incompetence have been made. The legal team has been unfairly criticised. Harish Salve, India’s counsel, has not helped by charging only Rs1 for the case. All that I can say to Mr Salve as a fellow lawyer is that he has now made it challenging for local counsel in South Asia to charge their country when national pride is at stake. If you ask for more than the ‘Salve rate’, your patriotism may be questioned. No one apart from lawyers will, or should, care about this.

Losing to India hurts many Pakistanis more than other defeats. Victory has a special charm. This is not necessarily a bad thing. It is destructive when it leads to belligerence or a loss of judgement. As a nation we must be mature enough to accept setbacks and learn from mistakes. There are many questions that the Pakistan government must ask themselves relating to this case. Why was consular access not granted? Why was Jadhav tried by a military court? What was the purpose of the March 2017 declaration filed by Pakistan with the UN? Were legal opinions obtained to ensure due process was being followed? In the absence of honest introspection, mistakes (and defeats) will be repeated.

As for Jadhav, he is going nowhere. Any appellate legal proceedings in Pakistan can take place in accordance with Pakistani law. He will also have judicial recourse to the high court and the Supreme Court if an appeal is rejected. If all legal avenues are exhausted, there is still the possibility of a pardon or clemency.

The counsel for India made an inaccurate statement during the course of oral arguments when he said there was no judicial recourse available from decisions made by the army authorities in an appeal from a court martial. The recourse is on limited grounds but is nonetheless available. If the decision in the appellate proceeding under the Army Act 1952 is without jurisdiction or in bad faith, it can be set aside by the high court in its writ jurisdiction under Article 199 of the constitution. Any decision by the high court on the writ can be appealed to the Supreme Court. Thereafter, the Supreme Court can be asked to review its own decision.

A judicial remedy is clearly available to Jadhav in the civil courts of Pakistan if any appeal before the military courts fails. This judicial recourse is relevant for two reasons. First, it impacts the admissibility of India’s application before the ICJ. As a general rule, an application to an international forum seeking relief is not admissible until local remedies have been exhausted. India’s application could be regarded as premature on this basis. The question of admissibility will no doubt be considered when the main case is heard.

Second, it is also relevant if Pakistan ultimately loses the case. The ICJ hearing a Vienna Convention case has traditionally not operated as a criminal court of appeal. The harshest remedy that it has granted where consular access has been denied is requiring the offending state to “review and reconsider” the conviction and sentence. The writ jurisdiction of the high court would enable any conviction and sentence by the army authorities to be reviewed and reconsidered. Even if Pakistan loses at the ICJ, unless our courts decide Jadhav is innocent, he will not be released. Ultimately, his case will be decided in Pakistan by Pakistanis applying Pakistan law.

Apart from questions of admissibility, the ICJ will need to consider the effect of the 2008 agreement between Pakistan and India relating to consular access. In the order on provisional measures all the court said about this was that the agreement does not expressly state that it limits rights contained in the Vienna Convention. When considering its final decision on this matter, the court will have to decide if by necessary implication this is the effect of the 2008 agreement. That clearly seems to be the intention of the parties since the agreement deals with this subject and makes explicit mention of cases involving national security being considered on their merits.

The entire authority of the ICJ is based on the principle that parties should comply with agreements that they have signed. It would be troubling if the ICJ facilitated a party in breaching the terms of an agreement. Pakistan should register this 2008 agreement with the UN so it can be invoked before the ICJ.

An Indian judge, Justice Bhandari was part of the court and heard this matter. This is not unprecedented. Judges on the ICJ are not representatives of their state. They are meant to be independent and frequently disagree with positions adopted by their State. In this case, Justice Bhandari has deemed fit to add his personal declaration to the order of the court on provisional measures. It is troubling and indicates a lack of independence and bias. He observes in his declaration that “this is a case in which it regrettably appears, on a preliminary examination of the facts, that the basic human rights of Mr Jadhav have been violated by not allowing India to have consular access to him”. No arguments have been addressed at this stage on whether the right to consular access is a basic human right and on whether by denying this Pakistan would be violating these rights.

The observation is wholly unnecessary and inappropriate. As if this were not enough, the Indian Express reported on its website that Justice Bhandari described the provisional measures ordered by the court as a “hugely satisfying interim pronouncement which is a great diplomatic victory for India”. The Express states in its report that Justice Bhandari spoke to them and said that, “I am delighted that the International Court rose to the occasion and did what it could in such short notice. We have saved a person from the gallows. This will prove to be a very important case for the jurisprudence of human rights.” The report could be inaccurate but it has cast a shadow. Justice Bhandari’s continued presence on the ICJ undermines the credibility and stature of the court. Pakistan should not accept it.

The Indian counsel in this case was asked by a member of the Indian media whether he thought he would win. He responded that whenever a client asks him this question his reply is the same: “There are powers beyond our comprehension that determine the destinies of men. Leave it to the judges and leave it to the biggest judge of all”. Pakistan should try its best to present its case and then leave it to the judges. But not to Justice Bhandari.

The writer is an advocate of the Supreme Court. He has served as additional attorney general for Pakistan and is a member of the adjunct law faculty at LUMS. Email: a.hosain@lma-eh.com