By Govind Manoharan*
During the Independence Day celebrations in 2016, Prime Minister Narendra Modi expressed his gratitude from the ramparts of the Red Fort to the people of Balochistan, a vast, highly disturbed region almost 1,000 km away from New Delhi. He then mentioned the joint Indian, Afghan, and Iranian efforts in developing the Chabahar Port in Iran, when only about 200 km and three months away, the Chinese sponsored Gwadar Port in Balochistan, Pakistan, would be inaugurated by the then Pakistani Prime Minister Nawaz Sharif. Again, in September 2016, a month after the prime minister’s shout-out to the people of Baloch,the region would be mentioned by India before the UN Human Rights Council (UNHRC) to highlight Pakistan’s poor human rights record.
Even before this sustained invective from India on Balochistan, Pakistan had already invited attention to India’s alleged presence in the region in March 2016, with the arrest of a retired Indian navy officer from Balochistan, Mr Kulbhushan Jadhav. The matter of his treatment under international law plunged the two countries into a diplomatic quagmire that finally saw a resolution at the International Court of Justice (ICJ) in 2019. While a verdict of the ICJ ought to be sparingly considered to be any resolution owing to the peculiarity of its jurisdiction (being rarely conclusive or binding), the decision on the claim brought by India against Pakistan resulted in three significant directions:
a. Jadhav should be informed of his rights and India be granted consular access to him in accordance with the applicable treaty provisions;
b. The conviction and death sentence awarded by a Pakistani military court would be subject to an effective review and reconsideration mechanism, of its own choosing; and,
c. Stay of the execution of the death penalty awarded by Pakistan’s military court until the completion of the review process.
India’s claim was primarily founded on the violation of Article 36 of the Vienna Convention on Consular Relations, 1963, which mandated that the receiving state ought to inform the detained foreign national of their right to contact the appropriate consulate, and if requested, to grant consular access to the sending state. This claim, which was decided by the ICJ in favour of India, was a sure-shot winner—based on a literal interpretation of a treaty that both India and Pakistan were party to, considering there was no controversy regarding whether any consular access was, in fact, granted by Pakistan to India (it was not).
However, the remedy sought by India for setting aside the conviction and sentence awarded to Jadhav by the military tribunal for the offences of espionage, and consequently to acquit and repatriate Jadhav, was rejected by the Court. The ICJ could not to sit in appeal over criminal adjudication by domestic courts—a settled position on its jurisdiction which the court rightly inclined towards. Instead, the court directed that an effective review and reconsideration mechanism of Pakistan’s own choosing must be employed to revisit the conviction and sentence. This direction is worth a closer look.
The ICJ, after an analysis of the remedies available to Jadhav against the military tribunal’s decision as per the applicable domestic laws viz. the Pakistan Army Act, 1952 and the Constitution of Pakistan, indicated—rather uncharacteristically—that Pakistan ought to provide an effective review mechanism, if necessary, by enacting legislation.This suggestion to enact legislation (in paragraph 146), although mandated to be one of the considerations for Pakistan while undertaking a fresh review, is likely to be ignored by Pakistan as this may be perceived as a violation of the sovereignty of the state.
The Army Act also covers any person accused of committing offences under the Official Secrets Act, 1923, and terrorism-related offences (apart from the members of the armed and other allied forces), and consequently, subject them to trial offences under the Act before the court martial. Meanwhile, the jurisdiction of the high courts to issue a writ is provided under the Article 199 of the Constitution. ICJ’s unusual suggestion to amend the extant laws to make it more “effective” seems to be based on a limitation imposed on the powers of the high courts in Pakistan to issue writs to judicially review orders passed by the military courts.
Similar to provisions of the Indian Constitution, Article 199 specifically provides for the intervention of the high courts in matters of violation of fundamental rights, which include the right to fair trial and the right of an accused against self-incrimination. However, the decision of the Constitution Bench of the Pakistan Supreme Court in Said Zaman Khan’s case restricts the scope of judicial review of orders passed by the court martial under the Army Act to cases where there is either a demonstrable lack of jurisdiction, malice in law, bias and/or, insufficient or no evidence for conviction.
By leaving it to Pakistan’s own choosing, with a non-effective suggestion for enacting a better law, it is conceivable that Pakistan follows the same course with Jadhav as it did in the earlier round. The crucial factor for this round of review could be the possibility of adequate and effective legal advice and assistance that India may be able to offer Jadhav once consular access is granted, which Pakistan has agreed to provide post the ICJ verdict.
If the advice is to mount a challenge to the order of the military court before the high court on the limited grounds available, whether the violations of basic procedures to ensure dignity of treatment of foreign nationals under the Vienna Convention would warrant its interference in accord with parameters set by the Pakistan Supreme Court is debatable. India, on the other hand, as well as the ICJ, may find its hands tied if the conviction and death sentence is upheld in a judicial process in Pakistan in the second round.
While victories are being paraded on both sides (as seems to be the trend), a few words of caution—in the Avena case, even though the ICJ directed the US to provide effective review and reconsideration, one of the 51 Mexicans for whom this international dispute was agitated by Mexico was eventually executed.
With allegations by Pakistan that India is meddling in Balochistan and escalation of tensions between the two, this may be a time for effective diplomacy rather than legal gambles—at the end of the day, a person’s liberty is at stake.
*Govind Manoharan is an advocate at the Supreme Court of India.