ISLAMABAD: A senior member of the Pakistan Bar Council (PBC) has called for an immediate meeting of the council to adopt a resolution demanding nomination of an ad hoc judge by Pakistan in the International Court of Justice (ICJ) through a representative process by involving parliament, instead of leaving it entirely to the government.

“If the nomination is made through a more representative process, such as with approval of parliament through a resolution passed in a joint sitting of both houses, no political party can possibly object on any ground,” said Barrister Raheel Kamran Sheikh in a letter sent to PBC Vice Chairman Ahsan Bhoon on Friday.

The letter has been written against the backdrop of meetings of a Pakistani delegation, headed by Attorney General Ashtar Ausaf Ali, with ICJ President Ronny Abraham and the Indian delegation to apprise them about Pakistan’s intention of appointing an ad hoc judge to sit on the ICJ bench for all proceedings, including a substantive hearing in the case of Indian spy Kulbhushan Jadhav.

Calls for PBC meeting to adopt resolution in this regard

The ICJ is seized with an Indian complaint on the conviction of Jadhav by a Pakistani military court. On May 18, the world court had stayed Jadhav’s execution through an interim ruling.

In his letter, Barrister Sheikh said that the nomination of an ICJ judge was one of the most important decisions for any state. Significance of such a decision for a country like Pakistan is even more for different reasons, including concerns for national security which appear to be at the heart of the Jadhav case.

As a citizen of the country, Mr Sheikh said, he felt that regardless of who was nominated by Pakistan as an ad hoc judge of the ICJ, the process for such nomination must inspire confidence of the nation and it could not be left entirely to the absolute discretion of the government.

After a long struggle for the independence of the judiciary, the parliament had curtailed absolute discretion of the government even to appoint judges of the Supreme Court and the high courts, as manifest from the provisions of Article 175A of the Cons­titution, he said. Therefore, how can the process of nomination of an ICJ judge be left to the absolute discretion of the government?

Mr Sheikh said that in matters of national interest, all political parties and all relevant institutions of the state must be on the same page. And the decision must look like a sovereign act and not just a decision of a political government.

All political parties and all relevant institutions of the state must not only be involved in the process of decision-making but they must be made to own the decision for better or worse, he added.

In the current situation, if anyone was nominated by the government for appointment as an ad hoc judge of the ICJ, opposition parties might criticise such nomination, he said. However, if the nomination is made through a more representative process, such as with approval of the parliament through a resolution passed in a joint sitting of both houses, no political party can object on any ground.

If on April 18, 2015 a joint session of the parliament could pass a resolution calling for neutrality in the Yemen conflict, why should it have no role in the approval of the nomination of a judge from Pakistan in the ICJ, particularly in the absence of any other procedure envisaged in the Constitution, the PBC member argued. Therefore, he said, a meeting of the council should be convened to pass an appropriate resolution regarding the process of nomination by Pakistan for the appointment of a judge in the ICJ.

Published in Dawn, June 10th, 2017