 | « Back to article | Print this article |
Former Union Minister Arun Jaitley on Thursday said the International Court of Justice's verdict in the Kulbhushan Jadhav case strongly supported and upheld India's stand on most of the points related to the case and termed Pakistan's projection of the verdict as its victory as "a boisterous and bravado claim".
"The judgment of the International Court of Justice delivered has strongly supported and upheld India's case on most issues... What surprised many was the official claim of Pakistan that the judgment is, in fact, a Pakistani victory. Supporters of this viewpoint gave two primary reasons for such a boisterous and bravado claim," Jaitley wrote in a blog on Thursday.
In a major relief to India, the ICJ on Wednesday continued its stay on the execution of Indian national Jadhav, who is held in a Pakistani jail on allegations of spying, and called for an effective review and reconsideration of the conviction by a 15-1 verdict.
The court had also found that Pakistan breached the Vienna Convention by not giving him consular access.
"Consular access is an extension of the principles of natural justice and fair play. An accused held in custody or detention in a foreign country has to be immediately informed that he has a right to seek consular access. The country to which the accused belongs has to be immediately informed that their national is in custody and, upon request, consular access has to be mandatorily provided. Such access enables an accused in a foreign land to get legal representation so that the trial against the accused would appear to be a fair trial," Jaitley, also a lawyer and former Union Minister, elaborated.
Terming the order an example of legal judgment writing, Jaitley pointed out if the military court's order for Jadhav's execution comes under the judicial review by Pakistan's high courts and the Supreme Court in lines with the ICJ's order for review and reconsideration.
He wrote: "The ICJ, in paragraph 135 of the judgment, clearly states that though India has asked for a declaration that Pakistan military courts are violative of international law, the ICJ was of the opinion that Tribunal/ Court had been constituted with the limited jurisdiction for the interpretation and the enforcement of the Vienna Convention. Its jurisdiction does not extend to claims based on other rules of international law. It is, thus, clear that there is no opinion of the ICJ because of the limited jurisdiction of this Tribunal to the validity of the military courts. That question, thus, would remain open before an appropriate forum for adjudication in the future."
Quoting the court's judgment, he wrote: "The Court considers that special emphasis must be placed on the need for the review and reconsideration to be effective. The review and reconsideration of the conviction and sentence of Mr Jadhav, in order to be effective, must ensure that full weight is given to the effect of the violation of the rights set forth in Article 36, paragraph 1, of the Convention and guarantee that the violation and the possible prejudice caused by the violation are fully examined. It presupposes the existence of a procedure which is suitable for this purpose."
"The Court notes that, according to Pakistan, the high courts of Pakistan can exercise review jurisdiction. The Court observes, however, that Article 199, paragraph 3, of the Constitution of Pakistan, has been interpreted by the Supreme Court of Pakistan as limiting the availability of such review for a person who is subject to any law relating to the Armed Forces of Pakistan, including the Pakistan Army Act of 1952. The Supreme Court has stated that the High Courts and the Supreme Court may exercise judicial review over a decision of the Field General Court Martial on "the grounds of coram non-judice, without jurisdiction or suffering from mala fides, including malice in law only," he quoted the judgment."
The Bharatiya Janata Party leader further quoted the court as saying that violation of Jadhav's rights and its implications for the principles of a fair trial should be examined during the review and reconsideration.
"This effectively means that for a review and reconsideration, the denial of consular access amounting to a violation of principles of natural justice would be a relevant ground for challenging the conviction," he wrote.
Jaitley said Pakistan "lost conclusively" before the world court and termed the sentencing by the military court to Jadhav as a "farcical processes".
Maintaining Jadhav's innocence, he said: "The ICJ has given Pakistan an opportunity to comply with the rule of law and reform its processes. Pakistan is now under a global gaze as to what direction it follows. The ICJ judgment, in this case, is a comprehensive victory for India."