26 Jan It is in the Interest of India to Settle the Jadhav Matter (India v. Pakistan) through Diplomatic Methods
[Abhishek Trivedi holds an LLM in International Law from the South Asian University, and is currently working on his PhD at the South Asian University as well.]
India should focus on negotiating to save Jadhav’s life through diplomatic channels as the remedy before Islamabad High Court (IHC) and subsequently before the International Court of justice (the ICJ or the Court) and the Security Council is inadequate.
India approached the International Court of Justice in 2017 for alleged violations by Pakistan of Article 36 of the Vienna Convention on Consular Relations (VCCR, 1963). This related to the conviction and sentence by a Pakistani military court of Indian national Mr Kulbhushan Jadhav on charges of his alleged involvement in terrorism and espionage. Pakistan argued that Article 36 of the VCCR does not apply to persons charged for espionage. The ICJ delivered its judgment on 17 July 2019 and held that Pakistan acted in breach of Article 36 of the VCCR and that it should provide India consular access to Mr Jadhav as well as the remedy of effective review and reconsideration (‘ERR’) of Jadhav’s conviction and sentence, in light of fair trial rights.
In line with the ICJ ruling, Indian consular officers were provided first and second consular access to Mr Jadhav on 2 September 2019 and on 16 July 2020, respectively. While Pakistan maintained that it has provided “unimpeded and uninterrupted” consular access, India claimed that the consular access provided was not “free,” as officials were not allowed to have a private and confidential conversation with Jadhav. There also seems to be interference in getting Jadhav’s consent to file a review petition before IHC.
Much has been written on Jadhav from diverse perspectives exploring different solutions and options for India and Pakistan. This article takes a different approach and argues that, notwithstanding whether India has been given uninterrupted and unconditional consular access, it should handle the Jadhav matter through negotiations and consultations for the following reasons.
Inadequacy of Review Process Before the IHC
According to the ICJ Jadhav judgment, Pakistan has to provide ERR of conviction and sentence of Jadhav through the means of its “own choosing.” Therefore, Pakistan is not necessarily obliged to facilitate confidential or private conversations between Jadhav and Indian consular officials.
The VCCR also does not provide any guidance regarding the modes and methods of providing consular access and leaves it to the receiving state (Pakistan) to provide such consular access as per its domestic laws and regulations.
Now, the review petition is listed for hearing before the IHC, and India has been given another opportunity to appoint a lawyer to represent Jadhav. The result of the petition would nevertheless not be in favour of Jadhav as the Supreme Court and High Courts of Pakistan have significantly limited review jurisdiction against a petition of death sentence awarded by the military courts of Pakistan.
They can, according to the famous Military Courts case of 2015 decided by Pakistan’s Supreme Court, exercise limited review jurisdiction only on the grounds of “Coram non-judice,” “mala fide,” or “without jurisdiction.”
The questions of “Coram non-judice” and “without jurisdiction” probably do not arise as military courts are established and governed by the Pakistan Army Act of 1952, and Jadhav was tried and convicted under the same Act.
As for the ground of “mala fide,” Article 199(3) of the Pakistani Constitution restricts the power of High Courts to grant any relief “… in relation to a person … who is for the time being subject to any laws relating to any of those Forces … in respect of any action taken in relation to him … as a person subject to such law.” Mr Jadhav is, of course, not a member of any armed forces of Pakistan, but for sure, he was subjected to Army Act, 1952 – a law relating to the armed forces of Pakistan.
Fair Trial May Not Necessarily be Assured to Mr Jadhav
The ICJ emphasized the need for effective ERR, which would entail that a “fair trial” be accorded to Jadhav and that the evidence, including any potential prejudice, be “fully examined.” The Court, however, did not pronounce anything regarding the legal elements of a fair trial. Nevertheless, Pakistan is required as per its domestic laws to adhere to the principle of a fair trial.
Now, let’s assume that the IHC agrees through a liberal interpretation of Article 199(3), to exercise jurisdiction on Jadhav’s petition. Jadhav may argue that it should be provided ERR in light of his fair trial right guaranteed under Article 10A of Pakistan’s Constitution. Jadhav may argue that his trial by the military court was not fair, as the military justice system of Pakistan is not transparent and independent, nor the civilians should be tried before the military courts. The IHC will most probably not hesitate to reject all of the Jadhav’s arguments here. The Supreme Court in Military Court case held that:
The process and procedure followed … under the Pakistan Army Act, have … found to be satisfactory and consistent with the recognized principles of criminal justice … [and] the procedure which was found acceptable for officers and men of the Pakistan Army can hardly be termed as unacceptable for the trial of terrorists, who acts as enemies of the State.
Also, the High Courts are hardly allowed to [re]-examine the findings of military courts, nor can they consider any new evidence or the implications for the evidence of a violation of fair trial right by a military court. Therefore, it is difficult to understand that the ERR of conviction and sentence of Jadhav would be “effective” and would not impede in giving “full weight” to the effects of violation of Jadhav’s rights outlined in Article 36 of the VCCR.
However, the Military Courts case is not beyond legitimate criticism as it was arguably decided per in curiam, because the Supreme Court failed to apply its judicial mind to decide the violation of fair trial right by military courts based on legal tests in the Constitution of Pakistan, authoritative pronouncements of the Supreme Court and High Courts of Pakistan, and international human rights jurisprudence.
There is also another reason – Article 8(3)(a) of the Pakistani constitution provides that certain laws, including the Pakistan Army Act of 1952, are immune from being challenged before the Supreme Court and High Courts on the ground of their inconsistency with fundamental rights. This would include fair trial rights guaranteed under Article 10-A of the Constitution.
India Might Not Get an Effective Remedy under Article 60 of the ICJ Statute
There is a high possibility that Jadhav would lose his case before the IHC. If India is not satisfied with the IHC decision and Pakistan’s legal position during the review process regarding the interpretation of the terms “consular access” and “fair trial,” India can approach the ICJ again under Article 60 of the ICJ Statute for any clarification in this regard.
Article 60 of the Statute provides that “in the event of a dispute as to the meaning or scope of the judgment, the Court shall construe it upon the request of any party.”
According to the ruling of the ICJ in the famous case concerning Avena and Other Mexican Nationals (Mexico v. United States of America, 2009), three aspects are relevant to satisfy jurisdictional requirements of Article 60.
First, the Court in the Jadhav case is prima facie supposed to exercise jurisdiction regarding the interpretation of the expressions “consular access” and “fair trial” as they are part of the original Jadhav “judgment” delivered on 17 July 2019.
Second, the Court will further ascertain whether there exists any “dispute” – a difference of opinion – between India and Pakistan regarding the “meaning or scope” of the term “consular access” or “fair trial.” On this point, India can argue that the term “consular access” used in Article 36 of the VCCR should be interpreted to include private or confidential conversations with Jadhav. Pakistan would, of course, deny such conversations, as it has been doing so, because it believes that such conversations are outside the scope of Article 36. Thus, it gives rise to a difference of opinion as to the interpretation of the term consular access.
Third and most importantly, for India to satisfy the complete jurisdictional requirements of Article 60, it has to indicate a “precise point[s] in [the] dispute as to the meaning or scope of the Judgment” of 17 July 2019. In other words, India has to be very specific while giving the “meaning,” or clarifying the “scope,” of the term “consular access or “fair trial.” Non-specificity as to what the claimed dispute precisely is may render India’s application inadmissible under Article 60.
Even if India successfully convinces the Court the jurisdictional requirements of Article 60, it would not be easy for India to defend its case on merits, as the ICJ will probably not comment on the process of implementation and substantive requirements of the fair trial, as doing so may amount to intervene in the domestic/internal affairs of Pakistan.
Also, the ICJ will probably not examine the international human rights jurisprudence on fair trial even Pakistan is a party to the International Covenant on Civil and Political Rights (ICCPR), 1966, because the Court assumed its jurisdiction for Jadhav Judgment based on Article 1 of Optional Protocol to the VCCR, not the ICCPR.
- Security Council May Not be a Viable Solution
There is also a possibility that India can approach the Security Council under Article 94 of the Charter of the United Nations. What measures the Security Council may take is not prescribed under the Charter; and since the Council is a political body, it would be immature now to conclude anything in this regard.
However, if India desires to approach the Security Council, it should be cautious as China, which is a close ally of Pakistan, may veto a possible resolution in favour of Pakistan.
Based on the above reasons and in particular, since the Jadhav case is politically-loaded in both India and Pakistan, it would be politically desirable and legally feasibly for both the countries to handle and negotiate the Jadhav matter through mutual understanding. This would also help in facilitating bilateral relations and provide an opportunity to ease tensions between the two nuclear nations.