On Wednesday evening, as the International Court of Justice (ICJ) convened to deliver its judgment, two countries on the Indian subcontinent waited with baited breath. For one of them, a decision taken by its military court would come under the global scanner, whereas for the other, the judgment by 15 judges and an ad hoc judge from the other country would result in either saving or losing the life of one of its citizens.
That the Republic of India and the Islamic Republic of Pakistan have seldom seen eye-to-eye and, for the most part, have always been at each other's throats has never been in dispute, but this was one of those rare times — certainly not the first — when the dispute was played out in an international court formed under the aegis of the United Nations.
The dispute involved an Indian national, Kulbhushan Sudhir Jadhav, whom Pakistan accused of espionage and being an agent of the Research and Analysis Wing (R&AW) of India, also tagging him as someone seeking to indulge in terrorism. Pakistan further claimed to have arrested him from Balochistan near the border it shares with Iran, whereas India claimed that Jadhav — a former Indian Navy officer — was kidnapped by Pakistan from Iran — where he was conducting business — and was subsequently transferred to Pakistan for interrogation, and detained accordingly.
The charges that Pakistan levelled against Jadhav were serious – espionage and terrorism, among others.
Add to this Pakistan's claim of a recorded 'confession', continuously ignoring multiple note verbales sent by India clearly identifying Jadhav as its citizen and requesting consular access. Islamabad also wrote to the Secretary-General of the United Nations informing him of Jadhav's arrest, his 'confession' — something Pakistan claimed to be proof of India's involvement in activities aimed at 'destabilising Pakistan' — and the Field General Court Martial that subsequently found Jadhav guilty and sentenced to death. It is believed that Pakistan thought all of this would in all probability pile international pressure on India, for once at least.
However, Pakistan seemed to have forgotten one thing: In its quest to seek to humiliate India by churning out repeated propaganda, it had miserably failed in its duty to grant India consular access in accordance with Article 36 of the Vienna Convention, claiming on one hand that Jadhav was an Indian spy, but shockingly claiming on the other that his nationality was not proved by India. The deliberate act of denying Jadhav consular access has resulted in the ICJ granting most of the prayers of India, and holding that Pakistan has indeed violated Article 36 of the Vienna Convention.
It must also be established at the outset that while India's case was made out inasmuch as Pakistan having flouted the Vienna Convention by denying consular access to Jadhav, the ICJ in paragraph 136 of its judgment also held that "…it is not the conviction and sentence of Jadhav which are to be regarded as a violation of the provisions of the Vienna Convention".
Before delving into the judgment of the ICJ in detail, it is imperative to remember that Article 36 of the Vienna Convention deals with communication and contact with nationals of the sending State and specifically sets out that in instances where an arrested person who is a foreign national requests, the consular post of his country must be informed without delay, and also sets out that consular officers shall have a right to visit a national of the sending State who is in prison, custody or detention. Moreover, the wording of this Article does not in any way carve out any exceptions leading to the circumstances of arrest, including but not limited to espionage, on the basis of which consular access may be denied.
In its submissions before the ICJ, Pakistan stressed on the doctrine of clean hands to seek to get the ICJ to repudiate India’s claim before it on the principle of admissibility. It is probable that this plea may have been taken owing to the fact that in the past, international tribunals have held that as part of equitable principles, a claimant's claims may be barred due to its illegal conduct in relation to the claim it brings. However, keeping aside the irony in this pleading by Pakistan, the ICJ held against it and ruled that in paragraph 61 of the judgment as follows:
"The Court does not consider that an objection based on the 'clean hands' doctrine may by itself render an application based on a valid title of jurisdiction inadmissible".
It will not be out of place to also mention here that while India and Pakistan are both signatories to the Vienna Convention, the two States had in 2008 entered into an Agreement on Consular Relations Between India and Pakistan. Sub-point (vi) of the relevant portion titled Agreement on Consular Access reads as thus:
"(vi) In case of arrest, detention or sentence made on political or security grounds, each side may examine the case on its merits".
Pakistan’s defence in the case before the ICJ involved pleading that owing to the 2008 agreement signed between itself and India, the aforementioned clause would prevail, and hence, it was well within its rights to reject consular access to India in the present circumstances. The ICJ rejected this contention.
While the ICJ only rejected this contention, Judge Yuji Iwasawa in a declaration settled the matter by stressing:
"Accordingly, in my view, even assuming arguendo that the 2008 Agreement was intended to allow limitation of consular access in cases of espionage, Article 36 of the Vienna Convention would prevail over the 2008 Agreement and would apply in the relations between India and Pakistan".
The ruling of the ICJ in this matter has now clarified that even in matters where an arrested person has been accused of espionage, denying consular access would result in a breach of Article 36 of the Vienna Convention.
In its judgment, on a 15:1 ratio — the sole dissenting judge being Judge Tassaduq Hussain Jillani, the ad hoc judge nominated by Pakistan, the ICJ extended the stay on the execution of Jadhav calling it an 'indispensable condition for the effective review and reconsideration of the sentence of Jadhav' and asking Pakistan to "…provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention…"
In its pleadings, Pakistan claimed that its high courts have review jurisdictions. Jadhav's mother has filed a mercy petition as well. There is also a certain grey area inasmuch as whether the review jurisdiction can be exercised, a matter also observed by the ICJ in its judgment.
While paragraph 3 of Article 199 of the Constitution of Pakistan has been interpreted by the Supreme Court of Pakistan as one which limits the availability of review for any person(s) subject to any law relating to the Armed Forces of Pakistan also including within this the Pakistan Army Act, 1952, it has, however, held that the Supreme Court may exercise judicial review over a decision of the Field Court Martial on the following grounds — coram non judice (ie proceedings where competence of the judge, absence thereof or jurisdiction is in question), without jurisdiction, and in cases where the judgment is suffering from malafides including in law only. While the aforesaid are matters that specifically deal with jurisdiction of the court(s) and/or tribunals, no mention has been made of the availability of judicial review in decisions of a military court on account of violation of Article 36 of the Vienna Convention. Thus, it is unclear whether Jadhav's case will fall within the ambit of judicial review in Pakistan.
While the ICJ has for now ruled in India's favour and stayed the execution of the Indian national, review and reconsideration of the conviction and sentence of Jadhav is still in Pakistan's court (see sub paragraph 7 of paragraph 49 of the ICJ judgment).
While prayers for Jadhav's swift return and reunion with his family are being said all over the country, it is hoped that the Government of India continues to do the very commendable job it has already been doing and employs all mechanisms at its disposal to bring him home.
The case at the ICJ calls for introspection in the power corridors in Pakistan. The stern observation by Judge Julia Sebutinde in her declaration succinctly puts what all those following the case have been holding from the first day:
"It appears right from the arrest of Jadhav and without waiting for his trial, Pakistan determined that he was spy who under Pakistani law was not entitled to consular access and, similarly, that India having 'interfered in the internal affairs of Pakistan' had also forfeited its right to consular access, under Article 36 of the Vienna Convention".
The above is in stark contravention to India’s legal mechanism where even in the case of the lone surviving perpetrator of the 26 November, 2008 Mumbai attacks, Ajmal Kasab, India offered consular access to Pakistan. But then, India's judiciary and the principles ensuring the rule of law in India have always been a cut above the rest.
The writer is an advocate at the Bombay High Court
Updated Date: Jul 19, 2019 12:50:39 IST