DAY 4 OF THE ORAL HEARINGS IN THE JADHAV CASE
Mr. Khawar Qureshi QC began the proceedings by expressing his pleasure at the presence of Judge ad-hoc Jillani.
He then stated that the second round of oral pleadings should be used to succinctly advance arguments relating to the first round, however, India did not reply to the arguments advanced by Pakistan in the first round of oral pleadings. More so, India failed to engage with any argument substantively.
In regards to India’s criticism of the tone adopted by him, he stated that such a tone was unfortunately required because of the context that had been created by India wherein it misconstrued things and tried to create propaganda before the Court.
He then proceeded to present his submissions:
India said that neither the nature of the charges nor the conduct is relevant to Art. 36 of the Vienna Convention on Consular Relations, 1963 (VCCR). In this regard, India has resorted to double standards wherein they rely on literal interpretations when at the same time they made deliberate additions/omissions in their pleadings to arrive at conclusions that support their contention.
- 2008 Agreement
India stated that its case is simple wherein they joined Arts. (v),(vi) and (vii) in their memorial to reach a conclusion that is alien to the agreement, in the opinion of Pakistan’s counsel.
- The Military Law Experts’ Report
India has now started to contend that the report is irrelevant. Prior to this, however, they misconstrued the report to their advantage and when Pakistan sought to get a clarification for this, it went in vain. He said that this is against professional ethics and India must take responsibility for what it wrote in its pleadings.
India keeps iterating that the case concerns the denial of consular access, however, India is deflecting serious questions and allegations that it made against Pakistan. The same has been done without presenting a shred of proof and therefore such allegations have no significance before the Court. Their purpose, rather, is to deflect, distract and evade.
- The Secret Report
India endeavoured to adduce a report purportedly dated 26th December, 2017 which formed part of its Reply on 17th April, 2018. In this regard, Khawar Qureshi stated that when Pakistan made it clear that it intended to expose the manufactured nature of the document, India sought to effect a unilateral correction to the said letter, which is a violation of the Rules of the Court.
He added that the same is consistent with India’s approach wherein it believes it has no duty to ensure the accuracy of the contents of its written pleadings and now when India has been questioned by Pakistan on this issue they say that the report is irrelevant.
- India’s obsession with the Lahore High Court Bar Association (LHCBA)
India repeatedly used LHCBA to equate and attribute responsibility to Pakistan. How is this not risible when it isn’t even an organ of the State, he questioned.
- Double Standards
India asserts that Pakistan failed to comply with 18 Mutual Legal Assistance (MLA) requests on one instance and subsequently stated that the number was in fact 40. However, when Pakistan contended that India has an obligation to comply with the requests of Pakistan vis-à-vis MLA they stated that it had no obligation to do so.
- The Kidnap Fiction
In regards to the contention by India that Jadhav was kidnapped from Iran, he stated that Dr. Deepak Mittal (Ministry of External Affairs) dodged the question of whether help was sought from Iran to investigate this issue when asked by the media.
In para 92 of India’s reply, it posed a question as to the other evidence apart from his confession and the passport. In this regard, India initially denied the report of the expert who checked the passport for authenticity. Now, they have changed their argument to state that even, arguendo, if he crossed the border the same is of no consequence. It becomes important to raise these issues, Khawar Qureshi said, because it directly relates to good faith and other such international obligations.
VCCR and the espionage exception:
India persists that even if an accused is properly charged with espionage, the denial of consular access would add something into the VCCR that is alien to it. In the opinion of Khawar Qureshi this would mean that a violation of territorial integrity of the receiving state or violating international law would be of no relevance. Therefore, such an approach ought to not be accepted.
Moreover, India failed to analyse Art. 5(a) and 55 in the context of the VCCR. Khawar Qureshi added that the travaux and State Practice make it abundantly clear that the drafters intentionally left a ‘studied ambiguity’ in regards to espionage. He refers to the preamble to state that Customary International Law is unaffected in absence of express provisions to the contrary and therefore India’s argument of the preamble crystallizing Customary International Law should be rejected as that would mean that the Convention makes redundant anything governed by Customary International Law.
In relation to the Peshawar High Court judgement, it must be noted that a judgement of the Court is binding insofar as it is not overruled by a superior Court. Therefore, an appeal by the State is of no consequence and the Peshawar High Court judgement is still in effect contrary to what India asserted.
India also asserted that Pakistan concealed the point regarding the State appealing the Peshawar High Court Judgement, however, the same was shown to the Court through the PowerPoint slides on Day 2 of the proceedings by Pakistan.
Moreover, India’s written reply asserted that Pakistan did not have a procedure by which ‘a trained independent judge’ who is able to ‘dispassionately review the findings of a military court’ is available. However, in stark contrast to this claim, the Peshawar Hight Court was able to address such questions boldly which reflects the robust independence and objectivity of the Judiciary in Pakistan.
India also misconstrued the resolution of the European Parliament to state that Pakistan has a bad track record in providing due process by using the word explicitly but the resolution shows no such explicit reference.
Finally, in relation to this head he stated that, notwithstanding anything in the military expert report or the review procedure the military courts comprise of the same safeguards as a civilian court. In this regard he stated that the Code of Criminal Procedure, 1898 also applies. India sought to misrepresent how the military Courts in Pakistan function. It is important to remember, he added, that Jadhav was tried pursuant to the Official Secrets Act which provides such jurisdiction in espionage and the trial was not done through the mechanism established by the 21st Amendment to the Constitution of Pakistan.
He re-iterated that Pakistan was driven to resort to forceful language because it was necessary as there was a brazen distortion of the 2008 Agreement as well as the doctoring the military expert report and other such behaviour.
He concluded by stating that India’s claim is devoid of legal merit, especially, in light of their conduct wherein they disregarded the truth. Therefore, India’s claim should be dismissed or declared inadmissible.
Concluding remarks by the Attorney General of Pakistan Mr. Anwar Mansoor Khan
He started off by stating that India raised irrelevant issues before the Court and made uncalled for criticisms on the judicial system of Pakistan. They painted a picture wherein there is no mechanism for review and reconsideration. However, the Attorney General remarked that there are constitutional safeguards in play and if those are not adhered to, an individual may resort to judicial review.
He reminded the Court of Afzal Guru’s case who was refused a lawyer and the Supreme Court of India whilst absolving him from a charge of being affiliated with a terrorist organization affirmed his death sentence on the basis of a collective conscience of society. He said that this is what a fair trial looks like within the judicial review system of India. He added that these references are only being raised because of India’s unwarranted concoctions before the Court. Furthermore, he cited the instance of Samjhota express, the use of pellet guns in Indian Occupied Kashmir, rape being conducted by the armed forces in the area as well as the indifferent attitude of the Indian government to investigate and prosecute diligently such unfortunate incidents. In relation to the Pulwama attacks, he stated that India is playing the ‘judge, executioner and the victim’ when it declared Pakistan responsible for the attack without any evidence.
Referring to the military Courts, he stated that they are governed by the Constitution of Pakistan and are subject to the same laws of evidence and procedure as the civilian courts are. Moreover, Jadhav was charged through an FIR which falls within the domain of a civilian agency. Military courts convicted him with proof alongside his judicial confession. It was Jadhav who refused to a judicial review and he also had the choice to appoint his lawyer but chose to opt for a defence officer. Even in a judicial review, which is still available to him, he is free to choose his own lawyer. Owing to such reasons, the claim should be dismissed in its entirety.
Written by Shayan Ahmed Khan