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Kulbhushan Jadhav: Understanding The ICJ Verdict From A Legal Standpoint – Analysis

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.

Pakistani men are ‘losing’ jannat on TikTok. And Imran Khan is busy targeting media


Pakistan’s TikTok is sparing none and having fun. Some call it un-Islamic and want a ban.

All work and no TikTok makes Pakistanis’ lives dull. These are the young and the old, the urban and the rural, the sassy new-age revolutionaries of Pakistani TikTok. In the times of curbs on mainstream media in Pakistan, a 15-second video on the social media platform is all it takes to dismantle any social, cultural and political argument.
Breaking the cultural hegemony of how men and women ought to behave, the Pakistani TikToker cares nothing about what the world says. Walking away from the global stereotype of a long-bearded man, he records his video, acting to the voice of a child asking for his favourite food.
In another video, he is seen acting to the voice of a little girl. The refreshing part is that this long-bearded man is just being plain silly and there is just so much comfort in how he takes to each voice-over.
In Pakistan, YouTube was banned between 2012 and 2016 because of the film Innocence of Muslims. Facebook was also banned for two weeks in 2010 because of alleged blasphemous content on pages like ‘Everybody Draw Mohammad Day’. In a land where the spectre of blasphemy charges is always a real and ever-present danger, TikTok has managed to stay safe so far – mostly because the Imran Khan government has its hands full, going after journalists and struggling to suspend some Twitter accounts.
Rural, lower middle-class Pakistanis largely dominate TikTok, but some urban ‘burger crowds’ also inhabit the platform with their tales of urban friendships, romantic troubles and caste jokes. Caste fights are seen when the rich and privileged can’t swallow that a user from an underprivileged background is getting more likes than him. TikTok is a great equaliser.
Not without politics
TikTok is no Facebook, where you want to rub it in about how perfectly happy your life is. TikTok is all about the imperfections. But no creative expression in Pakistan can keep politics away.
The government might have a noose around most TV news channels, but it is exposed rather hilariously on TikTok by naysayers. The TikTokers talk of Imran Khan’s promises of making Naya Pakistan; sometimes they remind the prime minister of how he said he’s not going to beg only to make a U-turn later.
When the prices of petrol go up in Pakistan, TikTok is lit with a donkey cart getting fuel at the station. Taking a jibe at the current state of the government, one user shows Rs 500, Rs 1000 notes to Imran Khan but the PM finally laughs when he is shown Rs 5,000 notes.
The Germany-Japan border gaffe is shot with not-to-miss props, suggesting the possible frame of mind PM Imran Khan was in when he told the world how “Germany and Japan killed millions until after the WWII” when they decided to have joint industries along their “border regions”.
TikTokers are not happy with anyone. One user dances to a song on how the Pakistan Peoples Party killed him with its arrow, then came the lion of the Pakistan Muslim League (Nawaz), and now his skin is being ripped apart by Imran Khan’s Shaukat Khanum hospital.

Bollywood is popular choice

The light-headed silliness is infectious. When Mehak dances at the Sargodha junction station, you know the setting and the character is real. Or, when the brothers from Karachi dance to Bollywood numbers in their videos, you feel like dancing too.
If Salman Khan has been known throughout his career for going topless, check these men on TikTok who tear out their t-shirts in literally every video. Why would they do that? How can they ruin so many t-shirts? No one cares for these questions as others are following their routine already.
If there is romance, then there is anti-romance as well. Like this nani gets annoyed when asked about romancing; she says, “what am I going to do with romance now, I’m old”. She is so endearing in her utter disdain.
But then if nani doesn’t want to romance, there are other oldies who want to have fun. This duet on Ek pardesi mera dil le gaya is just an insight into the diversity that at least Pakistan TikTok offers.
As entertaining as it is, there are rules too. Sajid Khan from Jhelum district of Punjab was booked for recording a TikTok video with an illegal weapon, a 30-bore pistol, in hand. He was booked for illegal possession of weapon by police.

No jannat for TikTok users?

There are always those who see the activity of TikTokers as un-Islamic. Protesters have charged that by being on TikTok, the youth were ruining their afterlife, in jannat obviously. And then there are those who want to get TikTok banned because too much fun can spoil a perfectly disciplined society. In January, a man from Nowshera district lodged a complaint with the authorities demanding that the government should ban TikTok as he saw it as a “social ill” for Pakistan.
Till it is banned, like in the past YouTube and Facebook were, Pakistan TikTok continues to democratise every discourse and continues to gather thousands of views with new set of influencers.

British High Commissioner called on Chairman PPP Bilawal Bhutto Zardari

Islamabad, 30 July 2019: British High Commissioner to Pakistan Mr. Thomas Drew called on Chairman Pakistan Peoples Party Bilawal Bhutto Zardari at Zardari House Islamabad on Tuesday evening.
Chairman Bilawal Bhutto Zardari and Mr. Thomas Drew discussed matters of mutual interests including political issues. Trade relations between both countries also came under discussion.
Chairman Bilawal Bhutto Zardari expressed his good wishes for newly elected British Prime Minister Mr. Boris Johnson.
Senator Sherry Rehman and Senator Mustafa Nawaz Khokhar were also present on the occasion.

US pressed Pakistan on FATF compliance during Imran Khan’s visit

Imran Khan’s delegation included among others General Qamar Javed Bajwa, chief of army staff who is often considered the real power center in Pakistan, and Lieutenant General Faiz Hameed, the newly appointed head of the Inter-Services Intelligence.
The United States had repeatedly pressed visiting Prime Minister Imran Khan and his delegation, which included the powerful army chief and the ISI boss, on compliance with counter-terrorism commitments that Pakistan has given to an international body that monitors and combats financing of terrorism.
Pakistan’s obligations to the Financial Action Task Force (FATF), the Paris-based body, as part of an ongoing discussion, was raised with Khan and his delegation at their meeting with US President Donald Trump at the White House and at a separate meeting with Secretary of States Mike Pompeo, a senior state department official told reporters Wednesday, revealing for the first time the depth and granular details of the counter-terrorism discussion.
Khan’s delegation included among others General Qamar Javed Bajwa, chief of army staff who is often considered the real power center in Pakistan, and Lieutenant General Faiz Hameed, the newly appointed head of the Inter-Services Intelligence that has been long accused of running and supporting terrorist groups operating in India and Afghanistan.
“At the White House meeting, the two sides also discussed the Financial Action Task Force, which was the subject the secretary also discussed at length with Prime Minister Khan and the chief of staff Bajwa,” the official said, and added, when asked if everyone on the Pakistani delegation including the ISI chief was on board, the United States “heard a consistent common message from the Pakistan delegation”.
The 38-member FATF, which coordinates its work with the International Monetary Fund that recently agreed to advance another bailout package to Pakistan, has put Pakistan on a “grey list” of countries with “strategic deficiencies” to combat money laundering and terror financing and is working with them to address those issues, according to a plan endorsed by the Khan government. But its progress was found inadequate at the monitoring agency’s plenary in June, and it is in imminent danger of being relegated to the “black list” of more egregious offenders such as North Korea, if it is still non-compliant by October.
While the Afghan peace process and Pakistan’s potential role in advancing it using its leverage with the Taliban was the chief purpose of President Donald Trump inviting and meeting Prime Minister Khan, counter-terrorism was next, according to the order in which the official listed out the subjects discussed by the two sides. Bilateral trade, which stands at around a paltry $6 billion, and other aspects of their ties followed.
The United States has pressed Pakistan for “sustained”, “meaningful”, “verifiable” and “irreversible” action against terrorism for years. The Trump administration dialed it up considerably, backed by bipartisan congressional support, and suspended millions of dollars in security aid.
There was no discussion about the resumption of that aid at any of the meetings — and to Khan’s credit he did not ask for it, as he had promised to the diaspora the night before his White House meetings. But the underlying reason for it — Pakistan’s reluctance to get rid of its terrorists remains at the “crux” of its problem along borders with India and Afghanistan — was re-litigated by the US side, which made it clear they will be watching closely.
Compliance with the FATF commitment will be crucial. As part of the rectification plan, Pakistan has agreed to undertake certain measures to stop financing of terrorism, arrest and prosecute individuals involved in terrorism, and the Trump administration intends to hold Khan to it, invoking his own “stated commitment” that Pakistan for its own future will prevent the operation of “all militant groups on its territory”.
“It’s a fact-based checklist,” the official said of Pakistan’s undertakings to the FATF. “We will certainly be looking how Pakistan is able to implement those commitment.”
The official hastened to add that the FATF check-list was not a list of US demands and they were obligations given to the international community, but added, at the same time, that it was a “discrete, tangible and measurable” yardstick for Pakistan’s counter-terrorism efforts.