Should We Not Demand Bail for Kulbhushan Jadhav Before The International Court Of Justice

1. This will be my third blog on Mr Kulbhushan Jadhav. Two years ago, within a span of seven days, I wrote two blogs on Kulbhushan Jadhav. The first was relating to the trivia that surrounded the ICJ Judgement, permanently staying the Pakistani military court’s order that sentenced Kulbhushan Jadhav to death. The other was more specifically focused on some of the evidentiary law aspects of the sordid saga of Kulbhushan Jadhav investigation by Pakistani authorities. Every blogger desires that even their old blogs should be read and reread! I am no exception; hence, I am providing you with the links to my earlier blogs ( International and Evidentiary Laws implication of ICJ Judgment of Mr Kulbhushan Jadhav’s case) (Some reflections on the International Court of Justice Judgment on Kulbhushan Jadhav’s case ). 

2. An executive summary of ICJ judgement in Kulbhushan Jadhav’s case.

a. Mr Harish Salve, the superstar international lawyer, made many Indian lawyers proud. He charged one Rupee fee and got the Death Sentence quashed. Honourable Late Sushma Swaraj dutifully went to Harish Salve’s residence and paid him the agreed fee (not many street lawyers are that lucky). That makes the superstar lawyer a lucky lawyer as well! He is now the lawyer for the Union of India to get Nirav Modi from Antigua/Jamaica/Barbados. As a fan, I hope he will get Mr Modi (Nirav!) extradited to India. But Sir, my request to you is to get Kulbhushan Jadhav back into India. This is my wish and request. I feel that public-spirited criminal lawyers in India must ensure Indians who face criminal legal proceedings in a foreign court, have the best possible legal representation and that they should not be denied their Right to Fair Trial.

b. In the earlier Kulbhushan Jadhav case between India and Pakistan, Jadhav (India v. Pakistan), Judgment, I.C.J. Reports 2019, p. 418, the ICJ has held the following:

i. Mr Jadhav was not provided Consular or Diplomatic assistance when he was accused of capital offences like acts of terrorism, waging war against Pakistan, etc. The right to diplomatic and Consular Assistance is a well-established principle of International Law (to me it is International Jus Cogens.). So, the ICJ found that there is a prima facie violation of a long-established principle of International Law.

ii. It is a matter of record that the trial in the Kulbhushan Jadhav case was by a Military Tribunal. We all know that, unlike other countries that have a Military, Pakistan is a country where the Military has a State for itself. Anyway, that is their problem. So, even if you try your servicemen in military courts, you should not try aliens in your Military Tribunals. A State should try them in normal Courts of Law. That’s what the Union of India did in the Kasab trial where more than 200 people lost their lives. It is gratifying to know the best lawyers in India gave Kasab the best possible legal aid, notwithstanding the outlandish demands of the accused to have Khushboo(perfumes). Furthermore, even in Pakistan, various High Courts have found many of the Military Tribunal sentences violate the Minimum Due Process contemplated under law. In other words, the reputation of the Pakistani Military Tribunal is far from squeaky clean! Imagine what it would be to an Indian!!

3. The ICJ is known for its reticence. As a student of International Law, I respect this quality. Unlike the Indian Supreme Court, they do not want to assume more powers than what is given to them under the statute of ICJ and UN Charter. They have said that the evidence that the Military Tribunal relied on against Kulbhushan Jadhav is tainted by the following illegalities:

a. Mr Jadhav was not given Consular Assistance.

b. The trial was without an effective legal representation.

c. The military Tribunal routinely relies on confessional evidence.

d.  As is normal in African and Asian countries, After detention, the suspect was subjected to torture and videos were recorded and was later leaked in the Pakistani media. This is to ensure that the local public opinion gets prejudiced and even before the trial, the possibility of the suspect meets the fate of Late Salman Tasir cannot be ruled out.

e. The Military Tribunals will happily grant amnesty or at least a luxurious sentence if the co-accused implicates the main accused.

f. Considering that the relationship between India and Pakistan has been on a continuous downhill since their respective Independence, would an Indian national have a fair trial before a Pakistani Military Tribunal?

g. But, the ICJ instead of pronouncing on the admissibility and reliability of the evidence which was available, ICJ thought it proper to suspend the sentence and give one more opportunity to the State of Pakistan to correct these illegalities through their own judicial system. In other words, ICJ gave Pakistan to remedy its own illegalities. In other words, it allowed Pakistan to remedy its illegalities- Pakistan has failed to do it within a reasonable time.

4. The consequences of a breach of the public international law obligation - If there is a breach of public international law, who should be the beneficiary of reparation, or, restitution for the breach of international obligation?

a. The Permanent Court of International Arbitration speaking through Judge Mr Huber in the Spanish zone of Morocco claims (1923) held that responsibility is a necessary corollary of a right. All rights of international character involve international responsibility. Responsibility results in the duty to make reparations, if the obligation in question is unmet.

b. In the Chorzow factory case (1928), the PCIJ held that it is a principle of international law and even a greater conception of law, that any breach of an engagement involves an obligation to make reparation which should be restitutio in integrum.

c. Traditionally international courts have held that individuals have no direct locus standi before them. Their case is represented by their State. Under International Law, if a State desires not to pursue the illegalities that its citizen had suffered, the citizen cannot compel the State to espouse the denial of justice as an international claim. Put differently, many times States chooses to suffer such illegalities in silence. India has also done it several times in the past.

d. Sometimes an international court or tribunal awards a relief or compensation because an individual of that State had suffered a legal injury; once again, under International Law, the State does not have an automatic obligation to transfer the benefit of restitution to the citizen who actually suffered the denial of justice. For example, in pursuant of the recent(May 2021) UNCLOS Tribunal Judgement, Italy has deposited INR 10 crore into the amount of the Supreme Court-monitored account. There are no time-bound directions as to how the money will be finally distributed. I am just curious to know how much money the Union of India is going to appropriate for itself, towards the cost of pursuing the remedy before the UNCLOS tribunal?

e. I must record that the fact that individuals are merely objects of international law and only States can be subjects of International Law requires a serious rethink after the advent of the Third Millennium. Actually, with the continuing evolution of International Law, States assume more and more restrictions on State Sovereignty. The States being creatures of humans, naturally do not honour many of the obligations that the States have voluntarily assumed. When States commit such a breach of law and there is a reparation, who should be the beneficiary of the reparation? In my honest opinion at least in criminal cases, individuals who suffered the denial of justice should be the main beneficiaries of restitutio in integrum.

5.  Under International law, the Right against Double Jeopardy or Does International Law guarantee the right against a new criminal trial on the same Cause of Action (Without additional new evidence)?

a. Actually, the Pakistan Criminal Justice System is substantially similar to its Indian counterpart. After all, both India and Pakistan shared the same legal system before 1947. I have many complaints about the Indian Justice Administration system, But, when I compare my problems with that of Pakistani citizens’ access to justice, I feel, "thank god I am not there." I am sure a lot of Pakistanis may feel that they are happy that they are not in India. That apart, I will say that in both countries, the Right against Double Jeopardy is a Fundamental Right. The existence of the right is recognised by the Universal Declaration of Human Rights and Covenant on Civil and Political Rights. This right originally was protection against two sentences for the same act. Subsequently, it became considerably wider and became a protection against a second trial on the same Cause of Action. (Autrefois acquit autrefois convict)

b. Legal systems all over the world want to ensure that no accused escapes a sentence only because there were procedural irregularities in the conduct of the trial. States reserve the right to conduct a retrial if the investigation manages to unearth new evidence which was not there at the time of the conclusion of the earlier trial. Further, the State wanting to introduce all evidence and demand a new trial must convince that there is additional evidence which they did not know or could not have discovered even after due diligence and search. In the case of a criminal mistrial, the accused is entitled to an acquittal unless the State justifies its demand for a new trial. But if the State is going to use the same evidence, which was judicially declared to be tainted, the chances of success in the new trial is bleak.

c. In this case, there have been several violations of International Law more particularly the procedural due fairness which under Art 37 (3) statute of ICJ is a general principle of law recognised by all civilized legal systems in the world. Even after 2 years, Pakistan has not commenced the trial. Apparently, they have not provided Diplomatic and Consular access as required by India in accordance with the ICJ Judgement. In fact, not many Pakistani lawyers are willing to represent an Indian accused in a terrorism trial. Indian requests for representation by Indian lawyers or even British Queen’s Counsels have not been favourably considered. Hence, the writing on the wall is clear for India. Pakistan is not going to conclude the new trial within a reasonable time!

d. The new trial in a Pakistani Court of Law will commence roughly about 2 decades of the original crime. Pakistani Government admittedly have concluded the investigation. They sought a sentence of death against a Foreign National which was duly granted. ICJ had found that the available evidence is tainted. Pakistani High Courts themselves have found that in many cases, Pakistani Military Tribunals routinely denied procedural due process to the accused. Normally, if the matter was tried by a regular Pakistani Criminal Court, the accused can plead Section 403 of the Pakistani Code of Criminal Procedure but, this defence will not be available to the accused if a superior court has ordered a retrial. In this case, ICJ has done that.

e. The next question that arises is assuming (but not admitting) Pakistan will be entitled to conduct a new trial, a fair court should exclude any evidence which was obtained in gross violation of Public International Law principles, especially when the accused is a Foreign National. As and when the matters are remanded for retrial, usually due to any defect in the investigation process, the State concerned has freedom under law to conduct further investigation. Not much is known as to whether Pakistan conducted further investigation. Even if they want to investigate further, the matter by itself is not a ground for denying the accused the Right of Bail pending trial. Bail is normally a matter of right if it can be proved that the accused will be available to face the sentence after the trial and the evidence available cannot be tampered with by the accused. All the evidence is in Pakistan and nobody anywhere can tamper with evidence that is in the custody of its countries military. Hence, under International Criminal Law, Mr Jadhav should be entitled to bail, he can be obliged to wear an electronic tracking device, not leave Islamabad or Rawalpindi, live under the care of the Indian Consulate or a responsible Pakistani NGO known for their impeccable service. I will gladly record still there are such organisations in Pakistan.

 f. Soon after the Judgment, there were rumours that due to the intervention of a friendly middle-eastern power, there is the likelihood of the release of Kulbhushan Jadhav. But it has not occurred. He has been in jail for more than a decade. It is not unusual for countries to exchange spies who have been convicted for espionage in third countries. Hence, the Union of India, through our superstar lawyer petition ICJ once again seeking enforcement of the judgement. Though International Law and Municipal Law insist that local remedies must be exhausted before an international claim is fit for espousal, International Law says that when there are no remedies in the local law to exhaust it or when the remedies available are obviously defective and manifestly illusory, then the exhaustion of local remedies rule will not apply.

g. Actually, the right to give a fair trial, including Consular and Diplomatic access to an alien is a right that is vested in the individual. If a State violates this right and if there is going to be a reparation for that violation, more than the State of the accused, the accused alien himself should have the benefit of reparation. Even if Pakistan can continue with the new trial, till the time of the conclusion of the trial, Kulbhushan Jadhav must be released on bail.

Mr Jaishankar and Mr Harish Salve, it is not enough that you get Nirav Modi to face trial in India. It is equally important that you should ensure Kulbhushan Jadhav does not face another unfair trial in Pakistan.