THE Pakistani counsel, Barrister Khawar Qureshi, told the ICJ that, in any case under Pakistani law, no execution could be carried out till the end of August. So whether Jadhav’s life is safe till the end of August because of the ICJ ‘stay’ or because of the provisions of Pakistani law remains a matter of personal speculation. However, this seems to be an after-thought and a face-saving statement, as during the argument when the Honorable Judge repeatedly asked the Counsel to categorically assure that Kulbhushan would not be executed till the final verdict, Qureshi continued to spell out the procedural details without giving any assurance. It only meant that if the interim order was not so vivid and categorical, the Pakistan Army was all set to hang Kulbhushan at the earliest.
At the outset let me share the feelings of utmost happiness of every Indians over the interim judgement of the International Court of Justice (ICJ) that has almost concluded that Kulbhushan Jadhav, the former Naval Officer who is under the custody of the Pakistan Army cannot be hanged. The interim order also accepted all claims made by the Indian side. Congratulations are certainly in order to Harish Salve and his team for having won us the judgement. Let us hope and pray that the ICJ remains firm on its opinion and delivers the final judgement in August that would allow Jadhav to walk free and return to India at the earliest. At this juncture the moot question is, have we saved Kulbhushan Jadhav’s life? Going by the nature and the wording of the interim order, what we have won him is a three-month reprieve till August.
The Pakistani counsel, Barrister Khawar Qureshi, told the ICJ that, in any case under Pakistani law, no execution could be carried out till the end of August. So whether Jadhav’s life is safe till the end of August because of the ICJ ‘stay’ or because of the provisions of Pakistani law remains a matter of personal speculation. However, this seems to be an after-thought and a face-saving statement, as during the argument when the Honorable Judge repeatedly asked the Counsel to categorically assure that Kulbhushan would not be executed till the final verdict, Qureshi continued to spell out the procedural details without giving any assurance. It only meant that if the interim order was not so vivid and categorical, the Pakistan Army was all set to hang Kulbhushan at the earliest. Now that the ICJ has also gone to the extent of warning the Pakistan authorities of international sanctions if its order is not obeyed letter and spirit, Kulbhushan can breathe easy that unless Pakistan willfully breaks the ICJ’s order and its own laws, he has at least till August to live.
Violation of Vienna Convention
I think that the final order will be as positively in India’s favour as the current interim order has been. However, would such an order be enough to ensure that Kulbhushan lives? On the basis of the ICJ’s present order on “provisional measures”, that is a question impossible to answer. For the most the ICJ can do, after having ordered that Kulbhushan cannot and must not be executed till the Court renders its final orders, is to restrict its final orders to the provisions of the Vienna Convention on Consular Relations, not go to the extent of ordering Pakistan to overturn the sentence passed under Pakistan’s domestic legislation, namely, its Army Act. As I understand the situation, the ICJ will say that India is entitled to consular access to Kulbhushan and that Pakistan must therefore, grant such access. But can they go beyond?
Will the ICJ be able to intervene in to the internal laws and judiciary system of the Pakistan Army? That seems most unlikely, at least on the basis of the complaint that we, as the Petitioner, have brought to the court under the Vienna Convention on Consular Relations – for that Convention is designed to assure access, but not to determine what follows thereafter. Having granted access, it is up to Pakistan to go ahead with the execution or grant clemency, as it deems fit. That specific point does not fall in the jurisdiction of the court under the Vienna Convention.
Off course there may be grounds under some other international Convention to which both countries are parties – say the UN Declaration on Human Rights – for India to go back to the ICJ. What we have substantially secured is a hundred-day breather to find a way of saving Kulbhushan. The initial reaction of the Pakistan authorities to the ICJ interim order has included their saying they will bring all the evidence they have against Kulbhushan and India before the Court. The court may give Pakistan the opportunity to bring in substantive issues relating to the evidence they claim to have gathered, India would be given the golden opportunity of rebutting Pakistan, and the Court might decide that since it is Pakistan that has substantively agitated the issue before the court, the court is entitled to claim jurisdiction over the substance of the evidence and not limit itself to the question of consular access under the Vienna Convention.
In the given situation, what we have in hand, as a result of Harish Salve’s exertions, is an interim order restraining Pakistan from undertaking the execution before August, along with a second “provisional measure” that Pakistan must report to the Court on the steps it is taking to implement the first part of the order – which is to not execute Jadhav before it gives its final order in August. Perhaps that means Pakistan will have to periodically assure the Court between now and August that Jadhav is alive. That’s it. Our news channels reported that the Court has ordered Pakistan to grant consular access, which is not included as a “provisional measure” in the interim order. On this noted Foreign Affairs Expert and Member of Parliament, Mani Shankar Ayer categorically mentioned, “We might try to interpret the totality of the judgement to argue that guaranteed consular access is implicit in the judgement – but it cannot be maintained that this has been explicitly provided for as, say, the stay of execution has, indeed, been explicitly provided for.” Ayer has a point because the Court also reminded Pakistan that its order regarding non-execution till final orders is “binding” on Pakistan. But a plain reading of the order only makes it binding on Pakistan to not execute Kulbhushan before the final judgement is rendered (in August); it says nothing about Pakistan being bound to immediately grant India consular access to him.
Two rays of hope
Ayer has also mentioned that there are at least two rays of hope India might consider availing of. The first arises out of a statement made by the Pakistani counsel in the course of his arguments that Pakistani law provides for the “writ jurisdiction” of the High Court even in a case decided by a field court martial. If this is indeed so, perhaps that is what we should concentrate on while the ICJ’s injunction prevents Pakistan from executing Kulbhushan. Since no Indian lawyer is going to be granted a visa for such a purpose, and Pakistani lawyers have been threatened by their own Bar Association from coming to Kulbhushan’s aid, perhaps we could find a lawyer from a country like Iran, Saudi Arabia, China that effectively enjoys unimpeded access to Pakistan to rush to Lahore and invoke the writ jurisdiction of the Punjab or Baluchistan High Court to get the case moved from the military to the civil side. The second option would be the one I have elaborated earlier also – in a “spy-swap”. However, we should not talk of a “spy-swap” as that would be to concede that Kulbhushan is indeed a spy. Perhaps we could call it a “detune-swap”. That was the standard procedure in international affairs.
To achieve success in this game of nerves, the most important thing is to be absolutely clear in our own minds that our objective must be the saving of Kulbhushan’s life. To sum up, let me conclude that by getting the favourable interim verdict from the ICJ, India has won the first legal battle. However, we need to win the war. And that should be our National Agenda over and above party politics and personal ego.
The author is a political analyst and former Member of Parliament (RS)
