DAY 2 OF THE ORAL HEARINGS OF THE JADHAV CASE
Pakistan was represented by Mr. Khawar Qureshi QC who was acting in the capacity as the Counsel for the Islamic Republic of Pakistan. Broadly, his arguments related to the following aspects:
- The passport issued to Jadhav was used to exit India 17 times and he had visas for Dubai and Iran
- India did not explain as to why the Vienna Convention on Consular Relations, 1963 (VCCR) left open the customary International Law position in regards to consular access
- Not a single state of the 177 states that are party to the VCCR responded to the invitation of the Court in 2017 on addressing the question of VCCR’s exception w.r.t. espionage which is evidence of, at a minimum, the desire of states to maintain ambiguity in this area.
- India failed to explain why the 2008 agreement did not apply.
- India didn’t engage the Mutual Legal Assistance (MLA) request sent by Pakistan in 2017 which is also in defiance of UNSCR 1373 (Paragraph 2(f) and (g)) which pose binding obligations on member States.
- India has mislead the Court in their pleadings (See below). For instance, he stated that Para 77 of their memorial states that neither the charges nor the conduct of the sending State is relevant. He states that such a statement is contrary to Arts. 5(a) and 55 of the VCCR.
- Claim for relief i.e. acquittal etc. is contrary to La Grande and Avena. He stated that India has disregarded such precedent. Even if VCCR is engaged the appropriate remedy is review and reconsideration by the High Court which has been available at all times to India and Jadhav’s family.
- He laid a great emphasis on the Judgement of the Peshawar Hight Court which overturned 70+ convictions of military courts. This, in his opinion, is indicative of due process.
His presentation comprised of 9 points which shall be looked at hereunder:
- Context (Forced Confession/Propaganda)
He states that India evaded the following questions:
- Why did he retire at such an early age?
- Why and how did he have an authentic Indian Passport
In this regard, he cited Indian journalists who agreed with Pakistan on this particular issue. One of whom was the son of the former Chief of the Army of India. Another journalist, which he cited, stated that the address of the fake passport was the same as the residence of Jadhav’s mother.
- Why did it not pursue investigations in Iran in relation to kidnapping?
On 19th Feb 2018 Dr. Deepak Mittal was asked by media as to whether the President of Iran was asked about the issue of Jadhav’s abduction from Iran to which no clear answer was given.
- India’s conduct is relevant
India deliberately avoided a notification of any dispute as per the Optional Protocol of the VCCR. This was done mala fide to get an order for the indication of provisional measures which India wanted without conducting the oral hearings at that stage.
He further stated that India has been in lack of good faith which is recognized in international law (Certain Norwegian Loans Case).
He then went on to pose the following questions to India vis-à-vis its conduct:
- The issuance of Passport as under the Indian Passport Act, having a forged Passport is a criminal offence. Either, he has been provided with a Passport or has committed a criminal offence. The former denotes India’s involvement the latter denotes a lack of investigation which is also relates to the point below.
- By a failure to engage in MLA, India violated 1373. He added that they cannot take cover under the garb of a lack of an MLA framework
- How was Jadhav able to travel so frequently with that passport?
In relation to the Passport issue, Pakistan produced an expert report by Mr. David Westgate who is an expert in this field and has 27 years of experience working in UK, India etc. More so, he has also worked with Indian intelligence. The expert was of the opinion that the passport was indeed authentic (hence affirming Mr. Khawar Qureshi’s point that India issued it).
In relation to the Military Courts an independent assessment was carried out by Military experts which stated the military court process are sound, however, he was critical of India’s distortion of the report by deviating from the literal meaning.
In relation to the 2008 Agreement, he noted that Art. 6 was misconstrued. To this effect, he showed a prior treaty on the same subject matter between India and Pakistan which stated more clearly the permissibility of denying consular access. By doing so, he endeavoured to illustrate that the 2008 Agreement can curtail the same.
India alleged maltreatment of Jadhav Pakistan during the time Jadhav’s family came to visit him. In response to such reports Mr. Khawar Qureshi presented a medical report of an Expert Doctor of German Nationality who examined him before the meeting of Jadhav with his family and declared him to be in excellent health.
- Nationality never established/ Consular Access never denied
He stated that a pre-requisite of granting Consular Access is to establish the nationality of the person in favour of whom diplomatic protection is being asserted, which India failed to do so. He cited Avena where the Court accepted USA’s objection against Mexico w.r.t to one individual whose identity was not established.
In addition, an expert report was added by Pakistan before the Court in regards to the jurisdictional basis and procedure and process in front of the Court. The report said that military courts are soundly based in statute and are thus legitimate. Art. 10 of the Constitution of Pakistan of right to a lawyer is reflected in Rule 23 PAA rules and is not manifestly unfair. Espionage jurisdiction isn’t unfair or improper in military courts.
- State Practice pre-VCCR/VCCR crystallized existing customary IL
The Rapporteur of the International Law Commission acknowledged that states do have recourse to emergency regulations in relation to performing consular obligations. Another author was cited to assert the point that national security may be a valid reason to deny consular access. Moreover, the preamble of VCCR kept pre VCCR customary international law intact. Finally, he cited authors writing after VCCR as well which used State Practice to emphasize this exception to the rule of consular access.
In his opinion, what matters is the position in 1963 and not after.
- Even if VCCR engaged consular access would be violate of Art. 5(a) and 55 of the VCCR
Even though this formed part of his line of arguments. Not much was said in this regard.
- India cannot wish away Article (vi) of the 2008 Agreement
In April 2017, MEA Spokesperson recognized the existence of the 2008 bilateral agreement. Moreover, utilizing Art. 31 of the Vienna Convention on the Law of Treaties, 1969 it appears that Article (vi) does concern consular access. Therefore, the agreement is not just limited to fisherman and nomads but also applies in situations such as this, contrary to what India stated yesterday.
- India’s claim for ‘at least’ acquittal, release and return is outlandish
Jadhav’s trial had adequate judicial safeguards in that it spanned over 4 stages over a period of nearly 6 months, was adjourned for 3 weeks to let him prepare. More so, India failed to provide evidence that Pakistan requested.
He then went on to rebut the law used by India at length. Firstly, he stated that the use of reports of Human Rights Committee is irrelevant to the VCCR and those reports do not concern Pakistan. The use of International Commission of Jurists report which stated that High Court and Supreme Court can’t take jurisdiction over such cases is incorrect in light of the Peshawar High Court judgement where military court decisions were annulled.
He also rebutted the jurisprudence of the Inter American Commission of Human Rights (IACHR) used by India. In his opinion, the same were used in a context not relevant to the proceedings at hand. More so, one of the cases used by India (the Medellin Case), was a case where the Court distanced itself from interpretation of the VCCR which in the opinion of the IACHR was the job of the ICJ. So much so, the IACHR added that the functions of the ICJ are distinct from those of the IACHR. Therefore, use of such a precedent is not relevant to the present case. Lastly, even in a case such as this only a re-trial was recommended.
In relation to India’s claim of Art. 36 being a human right, he stated that in the Avena Case the Court categorically rejected this conclusion. More so, he cited Avena at length to illustrate as to how the Court refrained itself from ordering any such remedy that India seeks in the present case. Further, the case also notes the sentencing and conviction to be in the domain of the domestic courts.
- In any event, effective review and reconsideration has always been available to Commander Jadhav and his family
The Peshawar High Court judgement stated that a judgement of the military court can be open to judicial review under Art. 199 of the Constitution as well as Art. 184(3) of the constitution. All the convicts in question within these cases were ordered to be released subject to appeal.
- Concluding Observations
The observations were, inter alia, as follows:
- India’s application be declared inadmissible because of abuse of rights, lack of good faith, illegality, lack of clean hands and misrepresentation
- VCCR not engaged as Jadhav not proved to be a national of India
- Customary International Law provided for an exception to consular access
- Sending a spy to Pakistan would violate Art. 5(a) and Art. 55 of the VCCR as well as other principles of international law
- 2008 agreement be given legal effect. Both countries have affirmed and used it. The same is also in compliance with the VCCR.
- India’s demand for acquittal, release or return is in bad faith and not in compliance with past precedent
- Even if a breach of VCCR is found the appropriate remedy is review and reconsideration by the High Court as per Art. 199 of the Constitution
Written by Shayan Ahmed Khan