After leading India's legal team to a significant victory in the ICJ over Pakistan in the Kulbhushan Jadhav case, senior counsel Harish Salve elaborated on the verdict.
In the verdict, the ICJ has said that Kulbhushan Jadhav’s death sentence should remain suspended until Pakistan effectively reviews and reconsiders the conviction in light of its multiple breaches of the Vienna Convention.
Here is what Harish Salve said:
ICJ intervened in this case, it protected Kulbhushan Jadhav who as on death row from being executed in a hearing which was put together in the matter of days and today it has delivered the judgement which has gladden our hearts and restored the faith in the rule of law, in the ICJ and in the systems we are mankind who have put together for the citizens of the world from state tyranny.
We had challenged the conduct of Pakistan in its brazen refusal to adhere to the Vienna convention and to allow consular access to an Indian. Pakistan all along used the proceedings to make allegations against India for state-sponsored terrorism. It repeatedly played out slides of what it claimed was a passport that it recovered from Jadhav and asserted that India has to explain how that was put in place. Not only did the Court not get played into this, but displaying passport led to the Court rejecting Pakistan's argument that Jadhav's nationality was uncertain. The Court said that if you say that a passport which was recovered, true or false. The Court said if you recover a passport which you rely on, and it was issued by India, you could have had no doubt that he was an India.
Pakistan ran three preliminary details, in the course of its exchanges with India, where India repeatedly sought consular access at one stage, based on the extracted confession which Pakistan played over and over again in the international media, Pakistan told India that they had registered an FIR, for those who had supported Jadhav in India, in what they alleged his conduct in Pakistan.
In the ICJ Pakistan also ran this case that India has not cooperated in this investigation and therefore India should not be here to complain on the Vienna Convention. This argument has been rejected. I have a degree of personal satisfaction that a lot of adjectives were used by Pakistan in its submissions, even in replying in the Court I characterise them as unfortunate, and I said it is my upbringing and India's tradition that stood in the way of replying to them. The Court has held that Pakistan is guilty of internationally wrongful acts of a continuing character and it must cease those acts.
Personally, as a lawyer, I am delighted that the Court has upheld our argument that while construing the Vienna Convention ICCPR must inform its interpretation. We had ambitiously asked for annulment, the Court said we can't annul but they said Pakistan has to do everything to make the Vienna Convention a reality. They have to allow review and reconsideration. They have rejected the argument that clemency is a form of review and reconsideration.
They have not accepted the argument that resort to judicial review in Pakistan Courts is good enough and that is why they have said that you must allow review and reconsideration. As I read the judgement, the critical point of review and reconsideration is that he has to be allowed consular access. It must take into account the potential prejudice cost to him, the implications of his evidence and his right to defence. It is only such review and reconsideration, where we Counsels will be allowed to meet him, discuss with him and see papers, examine the evidence against but also arrange for his legal representations. Then there has to be a fair trial.
Pakistan's attorney general asserted that their Constitution assures a fair trial. The Court has said, you must take all steps necessary. They have said there is an obligation of result. The Court has said you will take all steps necessary including legislative measures.
I think I see this judgement with a sense of relief and gratification. They said while all this is done, there is no question of executing him. I think it is now a good moment for us to help Jadhav, get justice and hope he has a fair trial.
I know since this is a question which you must be having in your mind, that 'what if?', the answer is, the way the Court judgement is, we can go back to that if what they give is not a fair trial.
Jadhav, 49, a retired navy officer was kidnapped by Pakistani authorities on March 3, 2016, from Iran, where he was carrying on his own business and was then shown to have been arrested in Baluchistan. India was informed about the arrest on March 25. He was sentenced to death alleging espionage on April 2017. Following the order by Pakistan's military court, India approached the ICJ and appealed that arrest of Jadhav and denial of consular access to him is in violation of provisions of the Vienna Convention on Consular Relations, 1963. India is represented by former Solicitor General Harish Salve and External Affairs Ministry Joint Secretary (Pakistan-Afghanistan-Iran) Deepak Mittal, and Pakistan by Attorney General Anwar Mansoor Khan while Khawar Qureshi is legal counsel.
Annual Pakistan's military court's decision of sentencing Jadhav.
Direct Pakistan to release Jadhav immediately and facilitate his passage to India.
If the trial takes place in Pakistan:
It should take place under ordinary law in civilian courts
Jadhav's confession in custody must be excluded
Full consular access be given and provisions for India to arrange for legal representations.