JADHAV CASE: The isolation of Pakistan at world court

Kulbhushan Jadhav

Pakistan’s top judiciary has a record of endorsing, and justifying under national and international laws, every imposition of the Martial Law. This has perpetuated the military’s clout in the country’s governance and a role that no civilian government, whatever be its political colour, has been able to resist…writes Rifan Ahmed Khan

Kulbhushan Jadhav

The International Court of Justice (ICJ) that ruled on the India-Pakistan dispute over the arrest, imprisonment and conviction by the latter of alleged Indian spy, retired commander Kulbhushan Jadhav, had a dissenting note from the judge from Pakistan that read more like that country’s brief than an objective disagreement from the majority.

Justice Tassaduq Hussain Jillani, an ad hoc judge of the court, forcefully pushed the arguments that were already made on behalf of Pakistan by its team. This was when the entire bench had already dealt with, diligently and minutely, arguments by both sides and delivered a collective 15-1 verdict where Justice Jilani stood alone and isolated.

Although being on the ICJ is country-specific, it does not require a judge to openly and specifically advance arguments on behalf of his/her country. Of course, it would be rare, if at all, that a judge would say anything critical of the country he or she represents.

Islamabad: The mother and wife of Mumbai-based former naval officer-turned-businessman Kulbhushan Jadhav, who was arrested on March 3, 2016, and was sentenced to death by a Pakistani military court on charges of espionage and terrorism meet him at the Pakistan Foreign Office in Islamabad on Dec 25, 2017. The meeting, with the death row prisoner lasted for about 40 minutes, but with a glass panel separating them and spoke through a speaker phone. The meeting started at 2.18 p.m., according to the Foreign Office. Indian Deputy High Commissioner J.P. Singh, who accompanied Jadhav's family, was seen watching the reunion from a distance. (Photo: Twitter/@ForeignOfficePk) by .
ahead of the meeting, the two women were made to remove their mangal sutra, bangles and bindi and were not allowed to converse in their mother tongue Marathi..(Photo: Twitter/@ForeignOfficePk)

It was good of the ICJ to include Judge Jilani on the bench even though his country was a party to the dispute. The ICJ has appeared fair and objective. But it is doubtful if the same can be said of Judge Jilani. And the judge, in his note of dissent, engaged in what would be, in a decent language, called terminological inexactitudes.

He justified Pakistan withholding consular access to Jadhav in violation of the Vienna Convention, a point that the majority judgement (15-1) has rejected.

Jilani made no mention of the opaque nature of Jadhav’s trial and conviction by a military court that held the proceedings in camera, allowing no legal help to Jadhav and then convicting him, handing over the harshest sentence of death – something for which Pakistan has become notorious the world over. Pakistan is among the top five nations who hang their convicts in large numbers and include China and Saudi Arabia.

Not just in Jadhav’s case, Pakistan has a long history of trying and convicting its own citizens by military courts. They were constituted after the terror attack on a school in Peshawar that killed 144, mostly children. The Nawaz Sharif Government that had them constituted, obviously under disdain and pressure from the military, subsequently succeeded in getting these courts extended – obviously again under the military’s diktat. Those convicted and hanged have included under-age youths, mentally challenged, petty thieves and those who got on the wrong side of someone influential.

Pakistan’s top judiciary has a record of endorsing, and justifying under national and international laws, every imposition of the Martial Law. This has perpetuated the military’s clout in the country’s governance and a role that no civilian government, whatever be its political colour, has been able to resist.

Always leaning towards military dictators, the top court has unseated elected governments of Nawaz Sharif and Benazir Bhutto more than once.

The judiciary even at the lower levels has also been inept, corrupt and prone to pressures – military, political, religious and from the moneybags. We have the latest incident of Judge Arshad Malik, admitting to knowingly meeting someone close to deposed prime minister Nawaz Sharif and only when caught on camera and exposed, admitting to the meeting, of being blackmailed and bribed.

Puri: Renowned sand artist Sudarsan Pattnaik's creation to press for "Justice for Kulbhushan Jadhav" in Puri on May 15, 2017. (Photo: IANS) by .
Renowned sand artist Sudarsan Pattnaik’s creation to press for “Justice for Kulbhushan Jadhav” in Puri (Photo: IANS)

He has been removed after Sharif’s daughter Maryam released video clips of the alleged conversation. Maryam has demanded why, if the judge is removed, her father whom he convicted should remain in jail.

The Supreme Court is seized of the matter and has issued notice to the Imran Khan Government to state how the case should be dealt with.

Pakistani analyst Zahid Hussain, writing on “Crisis of the Judiciary (Dawn, July 18th, 2019), calls the case of Judge Malik “a tragicomedy.”

“His affidavit submitted in the Islamabad High Court is being seen as a testimony of his compromised character. It also exposes the sad state of our lower judiciary and its apparent vulnerability to manipulation. In his statement, the judge confesses to being blackmailed and claims that the Sharif family tried to bribe him.”

Hussain points out that in the yet-to-be-verified video conversation, the judge talks about convicting the former prime minister under duress. But Malik did not deny talking to the persons in the video.

“The whole episode is scandelous. The judge may have been removed from the accountability court but no disciplinary action has been taken against him as yet.”

The Hague: A screengrab of Advocate Harish Salve as he speaks at the International Court of Justice during a public hearing in the case of Kulbhushan Jadhav, the alleged Indian spy sentenced to death by a Pakistani military court in The Hague, Netherlands on May 15, 2017. (Photo: IANS/UN) by .
Advocate Harish Salve speaks at the International Court of Justice (Photo: IANS/UN)

No longer just a legal matter, “the scandal has become an explosive political issue with both the opposition and the government trying to use the controversy against each other and engaging in a toxic blame game. The incident has brought into question the entire accountability process, given the alleged susceptibility of judges to pressure from state elements and from the rich and powerful.”

He complains that “the real issue related to the credibility of the entire judicial system has been lost in the cacophony of political point-scoring. The case of Judge Malik epitomises the ugly face of our judicial system.”

Hussain hints at the “role of the establishment and executive in influencing judicial process” and “power and money are also said to be used to bend the law, thus making a mockery of the idea of justice and a fair trial.”

“It is often said that the independence of the judiciary and the notion of fair trial are myths. It is not only military regimes and the establishment that purportedly seek to control the judiciary; civilian governments and political parties are also accused of trying to manipulate the system for their own vested interests,” Hussain writes.

Allegedly, “some judges had been bribed and intimidated and judgements dictated. Some judges alleged on record that the intelligence agencies openly influence the courts,” he says, adding: “It is not just about Judge Malik; it is also a crisis of the country’s judicial system. There are past examples of judges compromising the judiciary’s independence. Self-serving judicial activism and populism arguably damaged the sanctity of the apex court.”

Hussain forcefully states that “the case of Judge Arshad Malik must not be seen in isolation. Judges like him are the product of a system where the judiciary is pulled into a vicious power game that compromises its independence. A tainted judiciary would be in danger of being seen as the biggest threat to the rule of law and democracy.”


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