Coming straight to the core issue, let me begin first and foremost by pointing out that in a major boost to India and a huge relief to the family of Kulbhushan Jadhav who had been waiting very anxiously all along for the judgment to come, the International Court of Justice (ICJ) on May 18, 2017 very rightly stayed the execution of former Indian Navy officer Jadhav who had been sentenced to death by a Pakistan military court on charges of espionage and subversive activities. Pakistan had no strong evidence to prove that Kulbhushan Jadhav was a terrorist. Its specious arguments were thrown aside by the ICJ and India’s convincing arguments presently flawlessly and most elegantly by one of the best and most learned lawyers of India – Harish Salve won the day for India!
Let me also pen down that no law on earth can justify Kulbhushan Jadhav’s hanging on “whimsical, arbitrary and illogical” grounds. Pakistan is just using a retired naval officer who was doing business to hugely embarrass India by projecting him as a serving officer who was indulging in acts of terror in Pakistan. It is outright most blatant violation of all canons of justice and can never be justified under any circumstances. It is not for nothing that lawyers of India all over the country at the call of the Bar Council of India observed one day of protest against the death sentence meted out to Jadhav without following the “due procedure of law”!
What a pity that Indian High Commissioner in Islamabad Gautam Bambawale has met Pakistan Foreign Secretary Tehmina and asked for a certified copy of the chargesheet as well as the judgment on Jadhav but that too elicited no response! Even Pakistan People’s Party chief Bilal Bhutto has said that the matter is disputed which cannot be dismissed lightly! If he was a spy then why was he carrying his own original passport? Why he did not use a fake one if indeed he was a spy?
Let me bring out here that the former Pakistan Ambassador to the US – Hussain Haqqani has severely criticized the death sentence awarded to retired Indian navy officer Kulbhushan Jadhav, saying Islamabad’s “spy games” are making it tougher for the two South Asian neighbours to even explore peace. Haqqani minced just no words in making it crystal clear that Jadhav’s conviction would have been more convincing had it resulted from an open trial. There can be no denying it. “But as with much about Pakistan, the trial’s short and secretive timeline may have more to do with internal dynamics than with the merits of the case itself,” he wrote in an op-ed in The Wall Street Journal. Haqqani, who presently is the Director for South and Central Asia at the Hudson Institute which is a top American think-tank was forthright in admitting that putting an Indian on death row was an easy way to scuttle the momentum for new talks. The former Pakistani diplomat also alleged that Islamabad is unlikely to change its policy of using terrorists groups for its national security. Yet Pakistan instead is calling a retired Indian naval officer a spy and a terrorist. Isn’t it a theatre of the absurd?
Major Navdeep Singh (retired) who is an expert in military law and is an advocate in the Punjab and Haryana High Court and founding President of the Armed Forces Tribunal Bar Association is at pains to point out that, “India does not try civilians in military courts. Even those facing charges of espionage are tried by our regular judiciary with the full rights available to any other citizen.” But see what has Pakistan done in case of Jadhav! Major Navdeep rightly points out that, “Comparing Kasab’s case with Pakistan’s questionable Jadhav trial is difference between rule of law and rule of the jungle.”
We also need to bear in mind that a court martial in Pakistan does not enjoy any independence! Major Navdeeep rightly points out that, “The prosecuting agency, the prosecution, the defence members of the jury, convening and confirming authority and shockingly even the appellate body function under one agency, that is, the military, and it is all thoroughly delimited by command influence. While the civil judiciary would provide the full spectrum of rights and defence, examination of evidence, professional and a decision by a proper judge trained in law, over months or even years, all procedures are bypassed in a military trial and a non-challengeable verdict is handed out in a few minutes.”
Let me bring out here that Kubhushan Jadhav was arrested in March 2016 in the restive Balochistan province. In April 2016, a military court sentenced him to death for alleged involvement in spying and subversive activities. India has strongly contended that Jadhav was kidnapped from the Iranian port of Chabahar by Taliban and sold for a huge amount to Pakistan’s ISI and his secret trial was a “farce”.
While craving for the exclusive indulgence of my esteemed readers, let me also inform them that the 11-Judge Bench of the International Court of Justice unanimously ruled that Pakistan shouldn’t carry out the death penalty on Jadhav pending the final decision in the case filed by India alleging that Pakistan breached Jadhav’s right to consular assistance following his arrest last year. Why did Pakistan deny Jadhav right to consular assistance? Why India requested for 16 times yet Pakistan didn’t deem it appropriate to give consular assistance to Jadhav? Why Pakistan took so many days to inform India of the arrest of Jadhav?
How can a civilian like Kulbhushan Jadhav be tried under military law and awarded death sentence by the Field General Court Martial? Why even a lawyer was denied to Jadhav? Why Jadhav who Pakistan alleges that he was a spy carried with him his own original passport? Will any spy ever carry with him his own original passport with him?
Why the lawyers of Lahore High Court were threatening that if any lawyer dare defended Jadhav in Pakistan, his/her licence to practice as an advocate would be automatically terminated? It is because Pakistan has more to hide than to reveal! Why Pakistan has completely disregarded Article 14 of the International Covenant on Civil and Political Rights which calls for a fair trial and a fair and public hearing by a competent, independent and impartial tribunal knowing it fully well that Jadhav’s court martial goes against the very spirit of Article 14 as enunciated above? There are many more such troubling questions for which Pakistan has got just no answer!
It is most shocking to see that even the alleged confession video was appearing to be doctored and fake and was broken in parts! The video seemed poorly cut and several parts were spliced together. While in one part he says he retired in 2002 after the 2001 Parliament attacks, later in the video he says he was due to retire in 2022. While he refers to criminal activity in the country, he doesn’t elaborate on it. There is no clear evidence of espionage plot. This alone explains why even the ICJ refused Pakistan’s request to make it admissible as evidence!
It needs no rocket scientist to conclude that he must have been coerced and beaten brutally to extract forced confession from him! Jadhav after retiring from Indian Navy in 2001 had left for Iran to start a business at Chabahar free trade zone. It cannot be dismissed lightly that in December 2016, Pakistan Foreign Minister had himself said that there was insufficient evidence of espionage activities.
For my esteemed readers exclusive benefit, let me also inform them that ICJ President Ronny Abraham minced no words in making it absolutely clear to Pakistan while pronouncing the landmark order that, “Pakistan shall take all measures at its disposal to ensure that Jadhav is not executed pending the final decision in these proceedings”. The UN’s highest judicial body, which had earlier provisionally stayed Jadhav’s sentence on and also instructed Pakistan to inform it “of all the measures taken in implementation of the present order”. A Press release from the global court stated categorically that, “The court also decides that, until it has given its final decision, it shall remain seized of the matters which form the subject matter of this order”.
Be it noted, while asserting that it has prima facie jurisdiction over the case under Article 1 of the Optional Protocol, the ICJ backed India’s contention that there has been a violation of the Vienna Convention on Consular Relations as New Delhi’s requests for consular access to its national had been denied 16 times. The court further observes that the existence of a 2008 bilateral Agreement between the parties on consular relations does not change its conclusion on jurisdiction. India and Pakistan, it noted, have been signatories to the Vienna Convention since 1977.
To put things in perspective, the unanimous verdict of the 11-Judge Bench comes three days after the two countries gave their submissions during which India demanded annulment of the sentence and described Pakistan’s trial to convict Jadhav as “farcical”. Pakistan, in turn, had argued that the 47-year-old Indian national was a spy and India’s plea was “misconceived”. The ICJ which is popularly known as the ‘world court’ ordered Pakistan to “take all measures at its disposal” to prevent the execution of Jadhav, pending its final judgment, ICJ President Ronny Abraham said in a brief public setting at the ‘Peace Palace’ in ‘The Hague’ on thus marking a great legal milestone in the Indian government’s efforts to save Jadhav from execution. The decision was adopted unanimously.
As it turned out, the United Nation’s highest judicial body ICJ which had earlier been approached by India, noted that, “…the mere fact that Mr Jadhav is under a death sentence and might therefore be executed is sufficient to demonstrate the existence of a risk of irreparable prejudice to the rights claimed by India.” It also noted that, “Pakistan has indicated that any execution of Mr Jadhav would probably not take place before the month of August 2017. This means that there is a risk that an execution could take place at any moment thereafter, before the court has given its final decision in the case. The court also notes that Pakistan has given no assurance that Mr Jadhav will not be executed before the court has rendered its final decision. In those circumstances, the court is satisfied that there is urgency in the present case…The court also decides that until it has given its final decision, it shall remain seized of the matters which form the subject matter of this order.”
Needless to say, while asserting its jurisdiction over the case, the ICJ backed India’s contention that there has been violation of the Vienna Convention on consular relations since its requests for consular access to its national had been denied. The court order stated specifically that, “The court then turns to the question whether the rights alleged by India are at least plausible. It observes that the rights to consular notification and access between a state and its nationals, as well as the obligation of the detaining state to inform the person concerned without delay of his rights with regard to consular assistance and to allow their exercise, are recognised in Article 36, paragraph 1 of the Vienna Convention, and that India has alleged violations of this provision. In the view of the court, therefore, it appears that the rights alleged by India are plausible.”
Truth be told, Harish Salve, who argued India’s case and became the kingmaker in turning the scales in India’s favour said that Pakistan would run into serious trouble with the UN Security Council should it choose to execute Jadhav before the ICJ pronounces its final order. He also said that the India’s case on Kulbhushan Jadhav has been “emboldened” and “invigorated” with the first round of victory at the ICJ and India had a lot of stake in it and that he felt a “positive energy and connect with Judges” while arguing the matter in which Pakistan did not seem to have the same.
Truly speaking, at the hearing on , India described Jadhav’s trial as a “serious miscarriage of justice” because Indian diplomats were not granted consular access to him and he wasn’t allowed to choose his defence lawyer. India argued these restrictions amounted to a breach of the 1963 Vienna Convention on Consular Relations. Pakistan claimed the ICJ did not have the jurisdiction to take up Jadhav’s case as it was a “national security” issue, and that the court did not need to issue an order to stay the execution because it wasn’t imminent. However, the ICJ concluded on that it had “prima facie jurisdiction” as Pakistan’s “alleged failure” to provide consular notifications about the arrest and to allow communication and provide access to him fell within the scope of the Vienna Convention.
As things stand, the court didn’t make it clear whether Pakistan must now allow Indian diplomats to meet him. But clearly now Pakistan cannot hang Jadhav as long as the court’s proceedings are not completed and a final order is not delivered. Harish Salve who took a token fee of Re 1 to appear in the ICJ, told a TV news channel: “I felt a positive energy when I was arguing the case. I felt judges were connecting. I felt gratified. I did not feel that connection when the other side was arguing.” He added, “It was a complicated subject. We worked hard and prima facie got acceptance on all our points. We are now a lot more emboldened and a lot more invigorated.”
On expected lines, the ICJ’s landmark order was welcomed in India with open arms. Arun Jaitley who is Finance and Defence Minister and also an eminent Supreme Court senior lawyer said that, “This order, though interim, is a very serious indictment of the kind of mockery that exists in Pakistan in the name of judicial system.” Rajnath Singh who is our Home Minister said that, “The ICJ’s decision to stay the execution of Kulbhushan Jadhav gives the people of India a deep sense of satisfaction and relief.”
Going forward, Gopal Baglay who is the spokesperson for the Ministry of External Affairs stated categorically that, “The provisional relief provided by the ICJ is the first step in ensuring justice to Jadhav. The order by the ICJ is unanimous, favourable, clear and unambiguous. The verdict is a matter of great relief for people of the country.” In her tweets, Sushma Swaraj said: “The ICJ order has come as a great relief to the family of Kulbhushan Jadhav and people of India. I assure the nation that under the leadership of Prime Minister Modi we will leave no stone unturned to save Kulbhushan Jadhav.”
No prizes for guessing that Pakistan has been left red-faced and groping for face-savers! ICJ has clearly exposed the complete sham with which the Pakistan’s military court give dubious judgments without any reasoning! No doubt, India must now relentlessly step up the pressure further and not get complacent in pursuing this landmark case further till it reaches its logical conclusion and till Kulbhushan Jadhav safely arrives back in India!
Sanjeeev Sirohi, Advocate,
s/o Col BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kaankerkhera,
Meerut – 250001, Uttar Pradesh.