With Jadhav Case Now Before Islamabad High Court, India Must Carefully Weigh its Options

Irrespective of the limitations involved, India has an opportunity to make arrangements for the former naval officer's legal representation – a right it has been continuously denied since March 2016, and which could be used to good effect.

Kulbhushan Jadhav’s case came into the limelight for the first time in March 2016. Approximately four and a half year since, it still lingers on and is by no means near conclusion.

On March 24, 2016, the Pakistani authorities announced Jadhav’s arrest. Describing the former Indian Navy officer as a spy, Pakistan said he had been picked up inside Balochistan on March 3. On April 10, 2017, a Pakistani military court sentenced him to death for espionage and sabotage. In May 2017, India approached the International Court of Justice, claiming Pakistan had violated its obligations by denying Indian diplomats in Islamabad consular access to Jadhav. In July 2019, the ICJ found in India’s favour and said Pakistan must “review” the sentence imposed on Jadhav and allow Indian diplomats access to him

As the brief review above makes clear, the case in its lifetime has exhibited periods of long quiet, followed by short periods of sudden and significant developments. The recent sequence of events, fall in the latter category.

The International Court of Justice (ICJ) verdict

The trial conducted by a Pakistani military court in Jadhav’s case was, in a way, reset by the ICJ in its 17 July 2019 judgment wherein the ICJ ruled in India’s favour, by 15 votes to one, on all seven counts. The operative part of the judgment stated that Pakistan had breached its obligations under Article 36 (1)(b) of the Vienna Convention on Consular Relations (VCCR) by (i) not informing Jadhav, without delay, of his rights, and (ii) not notifying, without delay, the Indian High Commission in Pakistan about Jadhav’s detention. Pakistan had also breached its obligations under Article 36(1)(a) & (b) of the VCCR by depriving India of the right to communicate with and have access to Jadhav, to visit him in detention and to arrange for his legal representation.

The ICJ verdict put Pakistan under an obligation to inform Jadhav of his rights without further delay and provide Indian consular officers access to him in accordance with Article 36 of the VCCR. Pakistan was further obliged to provide, by means of its own choosing, effective review and reconsideration of the conviction and sentence of Jadhav to ensure that full weight was given to the effect of the violation of the rights outlined in Article 36 of the VCCR.

Pursuant to the judgment, Jadhav’s execution was stayed and India was provided consular access for the first time on September 2, 2019 i.e. three and a half years after his arrest. A second consular access was provided, after approximately 11 months, on July 16, 2020. However, the circumstances of the second consular access and the sequence of events that transpired before and after were far from straightforward.

Unexpected developments

About a week before the second consular access, Pakistani additional attorney general Ahmed Irfan, in a surprise press conference, revealed for the first time that to give full weight to the ICJ’s judgment, Pakistan had enacted an ordinance called the International Court of Justice (Review and Reconsideration) Ordinance, 2020.

Under the ordinance, a petition for review and reconsideration could be made to the Islamabad high court through an application within 60 days from the date of promulgation of the ordinance, which was May 20, 2020. This petition could be filed by Jadhav himself or a legally authorised representative or a consular officer of the Indian high commission.

The additional attorney general went on to share that Pakistan had invited Jadhav to file a petition on June 17, 2020 along with offering to assist in arranging legal representation. Jadhav had, however, refused this offer and instead preferred to follow up on his pending mercy petition. Resultantly, Pakistan had repeatedly written to the Indian high commission inviting it to file a petition at the Islamabad high court and initiate the process for review and reconsideration of Jadhav’s sentence and conviction before the lapse of the 60 days deadline, i.e. July 19, 2020. To this end, Pakistan had offered consular access to India for the second time, along with an offer to allow Jadhav to meet with his wife and father as well.

The additional attorney general said that Pakistan was a responsible sovereign state and was fully cognizant of its international obligations. It was committed to implementing the ICJ’s judgment in letter and spirit. He added that Pakistan hoped India would follow due legal course and cooperate with Pakistani courts to give effect to the judgement of the ICJ instead of “playing politics and using dilatory tactics” over the issue.

India responded to the unexpected developments strongly. It reiterated that Pakistan was in egregious violation of international law. It said that Jadhav had been sentenced to execution through a farcical military court trial and the latest developments were reflective of Pakistan’s continued farce at play. The Ministry of External Affairs spokesperson said that India was constantly pursuing the matter of full and effective implementation of ICJ’s judgment through diplomatic channels and had sought unimpeded access to Jadhav to discuss his rightful legal remedies. The promulgation of the ordinance was a complete U-turn on Pakistan’s earlier position that their laws allowed for effective review and reconsideration of military court’s verdict.

The MEA spokesperson stated that India’s position was that the ordinance provided for an inadequate review and was an attempt by Pakistan to create an illusion of remedy. The fact that Jadhav had been coerced to refuse to file a review reflected Pakistan’s attempt to scuttle even the inadequate remedy provided for under the ordinance. Despite repeated requests, Pakistan had refused to hand over to India any relevant documents (FIR, evidence, court order, etc), had denied India free and unimpeded access to Jadhav and had also disallowed a lawyer from outside Pakistan to represent Jadhav in the review and reconsideration proceedings. All this demonstrated Pakistan’s continuing reticence, lack of desire to implement the ICJ judgment in letter and spirit and merely create a mirage of compliance.

In light of the unexpected developments, India requested Pakistan to grant unimpeded, unhindered and unconditional consular access to Jadhav without any audio and/or video recording, in an atmosphere free from fear of retribution.

July 16, 2020: Second consular access

On July 16, two consular officers of the Indian high commission proceeded to meet with Jadhav. However, upon reaching the location which had been declared as a sub-jail, the consular officers found that the environment and arrangements of the meeting were not conducive. Pakistani officials were present in close proximity of Jadhav with an intimidating demeanour. A camera recording the conversation was noticeable. Jadhav was stressed, which hindered free conversation between Jadhav and the consular officers on his legal rights. Resultantly, written consent for arranging legal representation could not be obtained. Indian consular officers felt that the consular access was neither meaningful nor credible. Hence, they lodged a protest and left the venue.

India released a statement mentioning that Pakistan had failed to provide its diplomats unimpeded, unhindered and unconditional consular access despite making over twelve requests in the past year. The statement noted that consular access was of utmost importance as it was the basis for a process of effective review and reconsideration. Contact and conversation between the consular officers and Jadhav were required to happen in absolute privacy. Only then would Jadhav be able to speak freely, devoid of concerns of custodial reprisal. His repeated intimidation was already evidenced through his alleged disinclination to seek a review. Pakistan’s approach reflected obstructiveness, insincerity and violated its assurance to the ICJ to fully implement the 2019 judgement, the MEA said.

Pakistani foreign minister Shah Mahmood Qureshi’s account of the meeting, however, was diametrically opposite to the Indian version. In conversation with a leading local media house, he stated that consular access was provided in accordance with mutually agreed terms reached after extensive negotiations. Unlike previous instances, no glass screen was placed and face to face interaction was facilitated. No recording was being done, he insisted. When the Indian consular officers were unable to find any reason to complain, they made an excuse that the space within the meeting room was too constrained and began retreating. Jadhav pleaded with the consular officers to interact with him, but instead of engaging, they left with their tails tucked between their legs, said Qureshi. The foreign minister expressed astonishment and bewilderment on India’s request for consular access when it has already premeditatedly decided not to dialogue with Jadhav. According to him, India’s ill intentions had come to light.

Showdown in Pakistan’s parliament

While all this of happened on July 16, 2020, discussions on matters concerning the Jadhav case coincidentally found their way into the Pakistani senate the day before, i.e. on July 15, 2020.

Just when a minister was about to present a COVID-19 ordinance, Pakistan People’s Party leader Mian Raza Rabbani protested that the presentation of the COVID-19 ordinance and the ICJ (Review and Reconsideration) Ordinance, 2020 had been unreasonably delayed. The delay affected the right of the house to move a resolution for their approval/disapproval and amounted to breach of privilege. It was pointed out that the Senate had met from June 5-24 whereas the National Assembly had met from June 5 to 30. The two houses were again in session from July 8  and July 13, respectively; despite this, the ordinances were not tabled earlier, which amounted to a violation of Article 89 (2) (a) of Pakistan’s constitution.

Specific points were raised on the ICJ ordinance. It was alleged that absolutely nothing was mentioned about it either in the public domain or on the floor despite its promulgation on May 20, 2020, and an attempt was being made by the government to get it passed surreptitiously under the garb of the COVID-19 Ordinance. The foreign ministry was asked to explain whether the concession provided for in the ICJ ordinance was being availed by anybody considering that the cut-off date to file a petition under it was merely four days away.

Two days later, i.e. on July 17, 2020, Pakistan’s foreign ministry broke the news that it had offered Indian diplomats consular access for the third time to Jadhav without the presence of security personnel as a goodwill gesture. Hours later, PPP chairman Bilawal Bhutto Zardari tweeted and made the text of the ICJ ordinance public for the first time.

He questioned the government on how a secret ordinance on Jadhav could be introduced without taking either the country or parliament into confidence. Additional issues were raised in a press conference. Allegations were levied that instead of tabling the bill in parliament, the government was introducing the ordinance secretly so that it could give some relief to Jadhav. Such an ordinance, he said, would be illegal and unconstitutional and would not be acceptable to the people of Pakistan. The ministry of law and justice, however, dismissed these allegations as baseless and stated that casting aspersions on the federal government’s decision reflected a poor understanding of Pakistan’s delicate security issues and international obligations and was an attempt to confuse the public.

The tussle between the government and opposition continued in the National Assembly on July 23, 2020. Just when the ICJ ordinance, as per the day’s agenda, was going to be presented on the floor by the government, the opposition accused the government of trying to ‘grant Jadhav an NRO’ through the ordinance, a reference to the now-discredited Musharraf-era National Reconciliation Ordinance in which penalties for offenders was waived. It boycotted the proceedings, staged a walkout and pointed to the lack of quorum to prevent the government from laying down the ordinance.

The next day, on July 24,  2020, Pakistan’s law minister Farogh Naseem, took the floor and clarified that the ICJ ordinance neither forgave nor granted Jadhav an NRO. He said that based on the principle of comity of nations, Pakistan was obliged to follow the ICJ’s decision and the ordinance fulfilled that goal. If the ordinance were not allowed to be passed, India would approach the United Nations Security Council and bring resolutions and sanctions against Pakistan. The ordinance was in national interest and had been introduced by the government responsibly. However, the Speaker, before providing an opportunity to the opposition to respond, deferred the issue and adjourned the sitting. This prompted PPP chairman Bilawal Bhutto Zardari to call a press conference wherein he challenged the government to get the law passed without the support and cooperation of the opposition.

For an issue on which the opposition and the government had fiercely locked horns for two weeks, July 27, 2020 appeared to be a magical day. Babar Awan, adviser to the prime minister on parliamentary affairs, was not only able to lay the ICJ ordinance, along with four other ordinances before the National Assembly, but was also able to get them passed entirely unopposed. The respected Pakistani newspaper called this the ‘mysterious silence of the opposition’.

Petition in Islamabad high court

While the showdown was taking place in the Senate and the National Assembly22, the government of Pakistan filed a petition in the Islamabad High Court through the Ministry of Law and Justice on July 22, 2020 – i.e. three days after the expiration of the 60 days deadline to file a petition under the ICJ ordinance. The petition, on the one hand, stated that Jadhav had refused to engage a lawyer for himself. On the other hand, it stated that Jadhav did not possess the capability or the independent means to engage and instruct a lawyer in Pakistan without assistance from India. The petition went on to state that since India was avoiding the remedy made available by the government under the ordinance, the court should appoint, in national interest, any suitable advocate for and on behalf of Jadhav to file a petition for review and reconsideration and facilitate Islamabad’s compliance with the ICJ’s judgment. The petition cited the secretary of Pakistan’s ministry of defence and the judge advocate general at the military’s general headquarters (GHQ) as respondents.

India responded sharply to Pakistan’s petition. It stated that Pakistan had blocked all avenues for an effective remedy and was now again adopting a farcical approach. India also revealed that it had engaged a Pakistani lawyer for the case. The MEA said that when the Pakistani lawyer approached the concerned Pakistani authorities, they declined to hand over relevant documents (FIR, charge sheet, orders, judgments, field general court martial, etc.). As it was keen on filing a review petition, India repeatedly requested Pakistan to hand over the documents, but this was blocked on the pretext that documents would be handed over only to an ‘authorised’ Pakistani lawyer.

Despite this, India made an attempt to file, days before the ordinance was to lapse, a petition in the Islamabad high court. India’s Pakistani lawyer, however, was informed that a review petition could not be filed in the absence of power of attorney and supporting documents. According to India, all this amounted to a complete failure to provide a remedy as directed by the ICJ and was reflective of Pakistan’s non-serious approach. India also highlighted other concerns – such as the ineffectiveness of the remedy provided for under the ordinance, considerable delay in informing India about the ordinance’s promulgation and the fact that Islamabad shared a copy of the ordinance only after a request was made, that too with considerable delay.

The petition filed by the Pakistani government was taken up by Islamabad high court’s division bench consisting of Chief Justice Athar Minallah and Justice Miangul Hassan Aurangzeb on August 3, 2020. The high court restrained itself from appointing a counsel on behalf of Jadhav by observing that to ensure an effective review and reconsideration of the conviction and sentence, a reasonable opportunity had to be extended to Jadhav and India to arrange legal representation in line with Article 36 (1) (c) of the VCCR. The court further observed that it expected that Jadhav’s right to a fair trial would be respected. It directed the constitution of a larger bench, appointed three lawyers as amici curiae (senior advocates Abid Hassan Manto and Hamid Khan and former attorney general Makhdoom Ali Khan) and adjourned the matter till September 3, 2020.

Pakistan conveyed the Islamabad high court’s decision through diplomatic channels on August 6, 2020. India was officially invited to appoint a lawyer of its own choice and attend the September 3, court proceedings. Unimpeded and unhindered consular access was also offered with no restriction on the language for communication.

What lies ahead

The Islamabad high court’s directions are in India’s favour and two major positives come out of it. First, all developments in the Jadhav case, whether legal or otherwise, will now play out in the public domain. This will make it comparatively difficult for Pakistan to continue with its game of smoke and mirrors. Second, irrespective of the limitations involved, India will get an opportunity to make arrangements for Jadhav’s legal representation – a right which has been continuously denied to India since March 2016.

Presently, it is uncertain whether an Indian lawyer can be engaged to represent Jadhav, and if not, whether any Pakistani lawyer would be able to fight the case fearlessly without worrying about reprisal from ‘locals’. Nonetheless, India’s primary focus during the proceedings will be on hammering home how the Pakistani military courts sentenced Jadhav in a farcical way and in violation of the rule of law. Critical issues would revolve around the following questions:

  • Whether or not Jadhav was in Pakistan at the time of his arrest;
  • Whether his detention was in line with settled principles of law;
  • Whether the rules of evidence followed in the military trial were the same as that of Pakistan’s criminal courts;
  • Whether Jadhav was provided with the opportunity to engage a counsel in accordance with Article 10 and 10-A of Pakistan’s constitution etc.

Pakistan’s inability to answer such questions to the court’s satisfaction and India’s success in highlighting the malice of law and fact may tilt the case in India’s favour.  The judgment passed by the Peshawar high court last month in the case of Masoom Jan v. Federation of Pakistan may turn out be India’s trump card.

Although ancillary in legal precedence, India would like to exhibit to the court Pakistan’s continued non-compliance of Article 36 of the VCCR despite being put under an obligation by the ICJ back in July 2019. Pakistan would need to defend itself by furnishing tangible proof of having informed Jadhav of the ICJ verdict, offering him a legitimate opportunity to file a petition in view of the ICJ’s verdict, making a genuine offer to assist in arranging legal representation, his refusal to accept such offer along with the offering of consular access to India in line with international best practices.

An alternative front for assault would be the pending mercy petition. If the argument that Jadhav’s mercy petition becomes infructuous automatically upon the determination that the military trial was farcical fails, then India may potentially seek the particulars of Jadhav’s mercy petition and raise questions such as who drafted it and how a mercy petition drafted, and filed, by someone other than a representative authorised by Jadhav himself could be found to be tenable in the eyes of Pakistan’s laws.

Another approach can be to challenge the validity of the ordinance itself. This can be done on two grounds. First, that the delayed and covert nature of presenting the ordinance in parliament violated Article 89 (2) (a) of Pakistan’s constitution and amounted to a fraud on Pakistan’s constitution. Second, that no law can be enacted under the purview of which only a specific individual falls. The success of any one, or both, of the arguments, would make the petition filed by Pakistan’s ministry of law and justice in the Islamabad high court retrospectively infructuous. At his point of time, however, it is difficult to ascertain whether such an approach, while legally sound, would be beneficial for India in the quest of justice for Jadhav.

The language used by the Islamabad high court in its August 3, order can be construed as an attempt by Pakistan to commence, for the first time, the actual implementation of the ICJ judgment in letter and spirit. However, taking into account Pakistan’s track record, coupled with infighting between the democrats and, what is euphemistically called ‘the Establishment’, it would be unwise for India to not proceed with utmost caution.

The high court’s direction of constituting a larger bench and the addition of Justice Amir Farooq by the court’s registry to convert the two-judge bench into an odd-numbered bench of three, may have more to it than meets the eye. The possibility of a split verdict – wherein one verdict is intended to please the democrats whereas the other caters to the Establishment – cannot be ruled out. Irrespective of Pakistan’s internal politics and fault-lines, India won’t mind a split verdict as long as justice is served to Jadhav.

Jadhav’s case will put to the test the ability of Pakistan’s civil courts’ to ensure fairness of proceedings in the face of different understandings between civilian institutions and the military of what national interest is and how it can be pursued. Courts in Pakistan have been hailed to be among the last few civilian institutions which have been able to maintain their institutional integrity. The uncharacteristically strongly-worded judgment awarding capital punishment to ex-ruler Pervez Musharraf proved this emphatically. It is, however, a fight against the tide. The constant and systematic targeting of Supreme Court judge Justice Qazi Faez Isa – someone reputed to be among one of the most competent and honest judges in Pakistan (and who is also set to become chief justice in 2023 – and the broad daylight abduction, just last month, of prominent journalist Matiullah Jan are glaring examples of the uphill nature of the battle.

The world community is watching closely. It would be in Pakistan’s interest to not to proceed in Jadhav’s case in a manner that may further tarnish its reputation and credibility internationally.

Bharatendu Agarwal is Assistant Director at SAARC Arbitration Council (SARCO). The views in the article are strictly personal.

He has studied law at National Law University, Jodhpur and Stockholm University.