THE HAGUE: Thursday was the last day of the Kulbhushan Jadhav case hearing at the Peace Palace in The Hague. Khawar Qureshi, representing Pakistan, began his final rebuttal before the International Court of Justice (ICJ) by an unapologetic explanation of why Pakistan had to resort to “trenchant observations” in its rejoinder regarding India. Articulate and not one to mince his words, Qureshi once again chastised India for living in “wonderland” and persisting to the very end in seeking to “distract and deflect attention from its failure to answer critical questions by levelling accusations against Pakistan”.
India claims this case is only about denial of consular access whereas “it’s far from it”, claimed an uncharacteristically unrushed Qureshi. He found it absurd how India was reduced to equating the words of the Lahore High Court Bar Association secretary to the official position taken by the Islamic Republic of Pakistan. He addressed what he termed as India’s “Kidnap Fiction” by highlighting Dr Mittal’s failure to identify any attempt by India to engage with Iranian authorities regarding Kulbhushan Jadhav’s alleged kidnapping. “Providing explanation will expose the fiction,” claimed Qureshi.
The Queen’s Counsel spoke of yet another attempt by India to mislead the court with the mention of “photographs” of its officials. There was only one photograph shown by Pakistan in the court, that of Indian national security adviser Ajit Doval. It was “illuminating” how India never denied the contents of his February 2014 speech at any point. India’s confusion with regards to whether there were 18 or 40 MLA requests was another example of its deflection. Another instance of “playing fast and loose with words”, according to Qureshi, was India referring to words such as “clinching and convincing and unimpeachable” for Indian journalists; words never used by Qureshi at any point.
“Have we come to so what?” inquired a bewildered Qureshi with reference to India’s consistent disregard of the passport issue and claiming it has no legal consequences. According to Khawar Qureshi, “submissions were based on clear, compelling, un-contradicted evidence”. It was in fact, rhetoric that has been used by India “by way of pure and hollow response on this issue”. It’s a “catch me if you can” mindset, said Qureshi, whereby “India seeks to twist the facts and break the law to suit its purpose, brazenly trampling on red lines”.
Khawar Qureshi once again chastises New Delhi for living in ‘wonderland’
Qureshi clarified that Pakistan in no way wants what India contends it wants, a reading down of VCCR to exclude espionage. “Unless India contends that Article 5(a) (compliance of international law) of VCCR and Article 55 (non interference in the internal affairs of a state) have no meaning” which would be consistent with India’s core stance of “behaviour of state is irrelevant,” added Qureshi.
Rebutting all of Indian counsel Harish Salve’s arguments from Wednesday, Qureshi sought to make it clear the preamble to the VCCR makes it clear that the position as at Customary International Law was unaffected in the absence of express provisions to the contrary in the VCCR. “Affirming that the rules of customary international law continue to govern matters not expressly regulated by the provisions of the present Convention”.
Throughout his hour-long rebuttal, Qureshi mocked Harish Salve’s use of the nonsensical word “studied moderation”. Pakistan has “maintained dignity and not allowed itself to be provoked” in the face of “linguistic gymnastics” of India, claimed Qureshi.
India had claimed on Wednesday that Pakistan had sought to mislead the court by hiding the fact that the Supreme Court had a pending appeal against the Peshawar High Court judgement against military court executions. An exasperated Qureshi wondered how a judgement becomes irrelevant or loses value by being the subject of an appeal, “in all legal systems a court’s decision is valid until declared otherwise by a superior court”.
Earlier, Pakistan’s Attorney General Anwar Mansoor Khan took exception to the “very strong and uncalled for criticism” made on the judicial system of Pakistan, in an “attempt to show that it has no review or reconsideration process”. In expanding on the “very robust system”, Khan continued to clarify that “the entire courts, whether regular civil/criminal courts, special courts, specialised tribunals or the military courts are created through the various Acts of Parliament, as prescribed by the Constitution”. With regards to India’s scathing criticism of secret proceedings held in Pakistan, he pointed out that “for reasons of state security, confidentiality and state secrets, some of the trials cannot be made public. This is true in almost all jurisdictions, including India”.
Khan went on to defend Pakistan’s military courts as being “governed by the Constitution and by all the statutes, including the laws of evidence, the Criminal Procedure Code and all similar laws. Thus, saying that the military courts are for some reasons incompetent or above the law is an incorrect assertion”.
While pointing out that the relief sought by India was outside the jurisdiction of this court, the AG did, however, shed some light on India’s demand for a retrial in civilian courts. “I surely want to bring forth the fact that there is an existing FIR against him in the civilian domain and that, in addition to the conviction so given, the case of terrorism is to commence against him.”
Pakistan’s attorney general on Thursday replied to India’s allegations by first reminding it how unclean its own hands were. Afzal Guru, who was refused a lawyer and even after being absolved of the charge of being from a terrorist organisation, handed down a death sentence to “satisfy the collective conscience of the society”, was a case in point. “I ask them, is that a ground for conviction under the law or Constitution. Is this fair trial in judicial review in India?” asked Khan.
He went on to recall the Samjhota Express terrorist attack in which more than 42 Pakistanis were burnt alive and “Pakistan has requested that the perpetrators be brought to justice, but no action has since been taken. Indian has embarked on the process of exonerating the accused, who have confessed to carrying out this heinous act. Families of thousands of Muslims of Gujarat, who were massacred in 2002 with full state connivance, await justice”.
He was quick to point out how India has “become the judge, executioner and ‘victim’, without any evidence to show or any inquiry held” in the Pulwama terror attack. However, most aptly bought up by Pakistan’s attorney general was the reference to Kashmir, “the atrocities committed by India, without any recourse for the victims. The Indian human rights have been a target all over the world. May I mention the use of pellet guns by the Indians on the innocent citizens of Indian-occupied Jammu and Kashmir, where more than 200 innocent civilians have lost their lives, more than 15,000 have been injured, more than 15,000 are missing and more than 2,000 innocent men, women and children have been blinded for life by use of pellet guns. This includes 18-month-old Hiba, who would never be able to see, in her life.”
The court with the trans-national jurisdiction has reserved its verdict which is expected sometime in the next six months.
Published in Dawn, February 22nd, 2019