From the time India took Pakistan to the International Court of Justice (ICJ) in Kulbhushan Jadhav’s case, Pakistan’s international legal obligations and commitments have been overshadowed by fiery debates on which party is a bigger “Modi ka yaar” in public discourse.
The latest episode in this national fixation to distribute patriotism certificates is the opposition’s criticism that by giving Jadhav an opportunity to get his conviction and sentence reviewed, the government is trying to “facilitate” him and grant him an “NRO”.
In July last year, the ICJ found Pakistan to be in breach of its obligations under Article 36 of the Vienna Convention on Consular Relations (VCCR) on three counts: first, by not informing Jadhav of his rights under the VCCR: second, by not informing India of Jadhav’s arrest and detention without delay; and third, by denying consular officers of India access to Jadhav, which among other things, was contrary to their right to arrange for his legal representation.
The ICJ considered Pakistan’s breaches of Article 36 of the VCCR to be “internationally wrongful acts of a continuing character”, and directed that as reparation, Pakistan should provide for “effective review and reconsideration” of Jadhav’s conviction and sentence, including, if necessary, by enacting appropriate legislation.
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The court left the choice of means of “effective review and reconsideration” to Pakistan. However, it set out multiple factors that Pakistan must take into account when implementing the judgement: Pakistan should ensure respect for the principles of a fair trial is given “cardinal importance” in any review and reconsideration; the forum reviewing Jadhav’s conviction and sentence should consider “potential prejudice and the implications for the evidence and the right of defence of the accused” caused by the breach of VCCR obligations; and finally, the court clarified that clemency appeals before the Chief of Army Staff or the President would be inadequate for the purpose of “effective” review and reconsideration.
Since Jadhav was convicted by a military court under the Army Act and his conviction was upheld by a military court of appeal, the only review option available in his case was a review petition before a high court.
However, the scope of judicial review of judgements of military courts by civilian courts is highly restrictive. Courts have held that in such jurisdiction, they are “not empowered to analyse each and every piece of evidence in order to return a verdict” and “controversial questions of facts...cannot be looked into in this limited extraordinary writ jurisdiction”.
It was, therefore, always questionable whether the specific requirements of review listed in ICJ’s judgement would be met in a regular review petition before the high courts.
In this context, the President promulgated the International Court of Justice (Review and Re-consideration) Ordinance, 2020, in May this year, nearly a year after the ICJ judgement. The Ordinance states that its objective is to “provide for the right of review and re-consideration in giving effect to the judgment of the International Court of Justice”. It says where the ICJ passes an order under the VCCR or a foreign national is aggrieved in respect of the rights available under Article 36 of the VCCR, the foreign national, their authorised representative or a consular officer of their mission may file a review petition before the relevant high court against the order of a military court.
The Ordinance further states that in deciding such a petition, the court shall examine whether any prejudice has been caused to the foreign national “in respect of his right to defence, right to evidence and principles of fair trial, due to denial of consular access according to the Vienna Convention on Consular Relations”.
In simple terms, the Ordinance seeks to expand the grounds on which high courts can review judgements of military courts in certain cases to include the specific language of review and reconsideration in the ICJ judgement. The Islamabad High Court now has to decide whether the denial of consular access/notification to Jadhav at the time of his arrest caused any prejudice to his rights, including his right to an effective defence.
Contrary to what is being suggested by some opposition leaders, the Ordinance does not contain any provision to grant Jadhav a pardon. In fact, the President already has the power to give “pardon, reprieve and respite, and to remit, suspend or commute any sentence passed by any court, tribunal or other authority” under Article 45 of the Constitution.
During the ICJ proceedings in the Jadhav case, Pakistan consistently took the position that high courts already have the jurisdiction to hear review petitions against judgements of military courts on extensive grounds. But the Ordinance is an acknowledgment that this is not the case. One hopes this paves the way for a reform of Pakistan’s “military justice” regime, including the provision of appeal before civilian courts in all cases.
There are legitimate concerns about the secret, non-consultative manner in which the Ordinance was passed; whether its provisions meet the requirements of the ICJ judgement; and whether person-specific remedies of the kind proposed by the Ordinance are permitted under Pakistani law. However, it is unfortunate that opposition parties are focusing their criticism on alleged “relief” to Jadhav and “appeasement” of India.
Similarly, instead of acknowledging that Pakistan made a mistake by denying Jadhav consular access promptly after his arrest in accordance with its international obligations and the need to rectify that error, the government too continues to blame past governments for accepting the ICJ’s jurisdiction.
This viscous cycle of point-scoring must end. It comes at the cost of principles such as the right to a fair trial and creates an environment where even fulfilment of Pakistan’s basic international legal obligations appears as treason. Surely, our political parties are better than that.
Published in Dawn, July 28th, 2020