Pakistan govt under fire for its handling of Jadhav’s case


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The Pakistan government today faced flak over its handling of Indian national Kulbhushan Jadhav’s case at the International Court of Justice (ICJ), with several legal experts questioning the strategy adopted and asking why it accepted the global court’s jurisdiction.

The Hague-based court, the UN’s highest judicial body, had yesterday stayed the execution of Jadhav, 46, considered to be a spy by Pakistan. The ruling triggered criticism of the the Pakistan Foreign Office (FO) for its "poor handling" and also for its choice of Khawar Qureshi, who represented Pakistan’s case before the ICJ.

The Attorney General for Pakistan (AGP) had recommended some other counsel, The Express Tribune reported.

According to former Pakistan Bar Council Vice Chairman Farogh Naseem, Pakistan should have immediately withdrawn its March 29, 2017 declaration accepting the compulsory jurisdiction of the ICJ.

Instead of contesting the matter, Pakistan should have withdrawn the declaration immediately after India took Jadhav’s case to the ICJ, he said. "Why did Pakistan not take the glaring and brutal human rights violations in Kashmir before the court, despite the fact that Islamabad had a strong case in this regard?"
Former Additional Attorney General Tariq Khokhar, an expert in international law, regretted that Pakistan had accepted ICJ jurisdiction through a declaration, which should have been withdrawn once Pakistan knew that India would invoke the ICJ’s jurisdiction against it.

"Being an arbitration forum, each contesting state was allowed to nominate one person of its choice to act as an ad hoc judge at the ICJ...India did nominate one but Pakistan did not," Khokhar said, adding that Pakistan’s counsel did not argue for the full allotted time either.

Eminent lawyer and human rights activist Asma Jahangir suggested that rather than making the ICJ ruling a matter of ego, "we should sit down, join our heads and find a way out by going through the ruling thoroughly".

"Who gave the opinion to deny consular access to Jadhav in the first place?" she asked.

International law expert Ahmer Bilal Soofi was of the view that Pakistan should prepare for the second phase of the case, which was "more important because it would be contested on merit and would provide Pakistan the chance to document India’s intervention inside Pakistan through Jadhav".

Islamabad could insist on cooperation from India on the investigation into Jadhav’s activities, he said.
Former law minister S M Zafar said prime facie, it was a wrong decision. "I could not understand why the ICJ issued a stay order in the Jadhav case without even understanding the case."

According to him, Pakistan should change its legal strategy and concentrate more on the terrorism angle.
A senior official told The Express Tribune that India had been successful in managing the ICJ’s registrar office, which has vast powers to fix cases before the court.

"We were very surprised how swiftly Jadhav’s case was fixed before the ICJ," he said.

A senior official in the law ministry told the Express Tribune that Pakistan’s lead lawyer Qureshi made two mistakes.

"He did not nominate ad hoc judge before the hearing and he did not respond to the argument of Indian lawyer regarding the 2008 bilateral agreement between India and Pakistan on consular access," he said.

The agreement says both the states will not give consular access to terrorists. However, Haresh Salve, counsel for India, contended that the agreement was not registered with the United Nations.

The official said the foreign office had also failed to register the bilateral agreement with the UN.
Legal experts recommended that as the government now has a couple of months to evolve future strategy, it should not take a decision on appointment of an ad hoc judge in haste.

They also wondered why Pakistan wanted to appoint foreigner as an ad hoc judge when every state prefers to nominate its own lawyers.

Pakistan Bar Council executive member Raheel Kamran Sheikh said it was matter of concern that success rate of Pakistan in international arbitration cases was 2 per cent while India’s success rate was 60 per cent.

"We lost important cases at the international forum in the last couple of years. Likewise, we spent more than one billion rupees on lawyers’ fees in those cases," he said.

Sheikh said mishandling of Jadhav’s case was a classic example of how in the power struggle between military and political institutions, gaps in the foreign policy and national security perspectives had grown.

"And they [gaps] have grown to such an extent that if the situation is not arrested and improved immediately in the national interest by both the centres of power, irreparable damage shall be caused to the state," he said.

How Pakistani media reported ICJ verdict on Kulbhushan Jadhav’s death sentence

Pakistan suffered a setback as the ICJ put a stay on the execution of former Indian navy officer Kulbhushan Jadhav.

The stay on the execution of former Indian Navy officer Kulbhushan Jadhav by the International Court of Justice (ICJ) on Thursday has been a setback for Pakistan. That country’s military court had sentenced Jadhav to death on charges of espionage and subversive activities. But the ICJ rejected Pakistani claims of due process and arguments of sovereignty and was unanimous in its verdict by the 11-judge bench. However, at the same time, the court did not issue directions on consular access to Jadhav that has been demanded by India.

Here’s how the Pakistani media has reported on the ICJ verdict:

Presiding Judge Ronny Abraham of France (far right) and other judges enter the International Court of Justice courtroom at The Hague on Thursday. AP photo


One of Pakistan’s widely-read English language newspapers, Dawn, said in a front-page report headlined ‘Setback as ICJ ‘stays’ Indian spy’s execution’ that the court has restrained Pakistan from executing Jadhav until a final verdict in the case. The report quoted Attorney General Ashtar Ausaf Ali saying that the ICJ ruling changed nothing and that Jadhav still had time to petition for clemency. He added that Pakistan would appoint an ad hoc judge to the ICJ when formal proceedings begin. Jadhav also has not exhausted all the forums of appeal available to him, the attorney general said.

In another report, the newspaper talked of criticism at home over the manner in which Pakistan handled the case. DawnNews quoted Justice Shaiq Usmani saying the decision was ‘alarming’ as the world court does not have jurisdiction. “It’s Pakistan’s mistake to have appeared there. They shouldn’t have attended. They have shot themselves in the foot,” he was quoted saying.

Another DAWN report quoted the country’s legal experts assailing the ICJ over its question of jurisdiction. Dr Farogh Naseem, former Pakistan Bar Council vice chairman, said the country should have withdrawn its declaration it submitted on March 29 accepting the compulsory jurisdiction of the ICJ.


The Express Tribune

Apart from a news report on the ICJ stay on Jadhav’s death sentence, the front page of ‘The Express Tribune’ has a report quoting legal experts blaming the foreign office’s officials for poor handling of the case. A senior lawyer told the newspaper that the legal wing of the office needs to be revamped as the officials could not offer proper advice to the counsel in the Jadhav case.

Another report quoted the government saying ‘all is not lost’ with respect to the case. Sartaj Aziz, advisor to prime minister Nawaz Sharif on foreign affairs, said the ICJ had yet to adjudicate on the matter of jurisdiction and the merits of the case. Meanwhile the opposition parties have slammed the way Pakistan handled the case at the world court.

The News International

Another English language newspaper, The News International, reported on the ICJ judgment. It also quoted Sartaj Aziz saying a stay by the world court in the case was not ‘unusual.’ Stay is granted in most of the appeals, he told reporters.

In another report, it quoted the Foreign Office spokesperson saying the ICJ has no jurisdiction to hear Jadhav’s case as it pertains to ‘Pakistan’s national interest.’

Dunya News

An interview of Pakistan Defence Minister Khawaja Asif carried by Dunya News said the Jadhav case ‘is an issue of Pakistan’s national security and there will be no compromise on it.’ “ICJ has only granted formal stay on the death sentence of Jadhav,” he said.

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