In war, truth is the first casualty. Post-Pulwama, the Indian media claimed there had been a decisive strike hitting terrorist infrastructure in Balakot. There was unseemly jingoism instead of journalism. In Pakistan, there was a very different narrative authored by the PR department of the Pakistan armed forces. Questions of who shot what/whom and where had different answers depending on which side of the Line of Control you viewed matters from. Wing Commander Abhinandan’s capture and release put a human face on it. At least the two sides could agree that the Pakistan army served a fantastic cup of tea.
This month, another alleged Indian commander, Kulbhushan Jadhav, was in the news. The International Court of Justice (ICJ) was ruling on India’s complaint against Pakistan asserting 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. How did it fare? Yet again, two very different stories have emerged.
Both sides 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 failing to provide such access. Pakistan did not at any stage concede that he 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 at ICJ
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 after exclusion of his confession. 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.
When countries sign the Vienna Convention, they agree to rules on consular access. They do not agree to judges in The Hague ruling on the fairness of a country’s criminal justice system, nor do they agree to these judges acting as an appellate court in respect of domestic convictions. India sought to distinguish previous cases decided by the ICJ by arguing that Pakistan’s criminal justice system by way of trial in military courts does not provide adequate due process protection in its application to civilians.
Also read | Kulbhushan Jadhav Case: The Legal Arguments
As expected, India’s ambitious strategy 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, as a result, 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 a partial success. On this side of the border, it is being construed as an endorsement of Pakistan’s judicial system, including trial by military courts.
Need for Pakistan to introspect
The harsh reality for Pakistan is that the decision unequivocally holds that it violated international legal commitments. In light of this finding, the need of the day is for honest and sober introspection rather than gloating. The state must learn from its mistakes. Part of the learning process involves an analysis of what went wrong. There are three decisions that require reflection.
First, the initial decision not to grant consular access. Matters involving international law must be carefully considered by appropriate experts and a decision taken after legal advice. It was a mistake not to provide Jadhav with consular access and not to inform him of this right. It was also a mistake not to immediately inform the Indian government of his detention. By making these mistakes, the state of Pakistan breached its international legal commitments. Why and by whom were these decisions taken? This needs to be carefully and impartially reviewed and a mechanism put in place to ensure the mistake is not repeated.
Second, having initially denied consular access perhaps on national security grounds, was the question of granting such access subsequently considered at any stage? There was nothing stopping Pakistan from deciding to grant access even after the legal proceedings had started. It would have taken the wind out of the sails of India’s case.
File photo of Kulbhushan Jadhav meeting his family. Photo: Handout via PTI
Third, the Pakistan army has welcomed the decision of the ICJ and the Pakistan state has said that there will be compliance. This means that there was no national security imperative calling for lack of consular access. The army would not welcome something if it jeopardised national security. If no national security issue was involved, what prompted the initial decision to deny access or the subsequent insistence on this position? Too often, the use of the phrase “national security” stops any proper consideration of a matter by relevant institutions.
Why grounds for a review are limited
It is heartening to note that Pakistan relied on the fundamental human right enshrined in Article 10A of its constitution before the ICJ. Pakistan asserted that Jadhav is entitled to this fundamental right to due process and a 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 the 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 by a military court. The same remedy is available to anyone convicted by military courts as shown in the Peshawar case. Decisions of military courts are judicially reviewable.
Also read | Beyond the Hurrahs, Eight Takeaways from the ICJ Ruling on Kulbhushan Jadhav
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. Courts have held that a “wrong” decision in law is in excess of jurisdiction since courts (including military courts) only have jurisdiction to decide in accordance with law.
As part of the relief granted in the case, the ICJ has ordered that the “review and reconsideration” of the conviction and sentence must be “effective”. This does not mean that there must be a civilian retrial or that Jadhav must be acquitted after such process. It means the process – to be provided by the state of Pakistan by a means of its choosing – must be genuine and give an opportunity for Jadhav to properly present his case after consular advice. For the review to be effective, it must consider the impact on Jadhav of denial of his consular rights and the implications of this denial on his right to a fair trial.
A view of the full bench of the International Court of Justice as the verdict is delivered in the Kulbhushan Jadhav case at The Hague. Photo: ICJ
The ICJ 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”. In reaching this conclusion, the ICJ proceeds on the mistaken assumption that constitutional amendments in Pakistan prevent persons convicted by military courts from relying on breaches of fundamental rights.
The relevant constitutional amendment prevented the law extending the jurisdiction of military courts from being struck down as unconstitutional. It did not restrict the right available to a person convicted by such court from challenging the conviction through a judicial review process. In light of the ICJ’s observations, it seems clear that the civilian courts must consider the impact of denial of consular access on Jadhav’s trial for Pakistan to fulfil its obligations to provide for effective review.
The government will need to proceed with caution in this case to ensure compliance with the ICJ decision. If Jadhav retracts his confession on the basis that it was given under duress and in absence of consular/legal advice, is there any other evidence linking him to the crimes he confessed to having committed? Convictions solely on the basis of confessions in custody are often troubling and unsound. In any case, the government and authorities should be focused on getting the right and fair result in any review and reconsideration, and the aim should not be to uphold the conviction at any cost.
It is difficult to be critical of the positions taken by your state. Particularly when it involves a dispute with a perceived enemy. It leads to accusations of disloyalty, even treason. Progress and improvement are only possible after critical self-evaluation. If as a nation we can acknowledge that fact, it will mean a better future for all.
A version of this piece originally appeared in The News.
Khwaja Ahmad Hosain is an Advocate of the Supreme Court of Pakistan and a Bar at Law. He has served as Additional Attorney General of Pakistan. He can be contacted at ahmadhosain@icloud.com