Can Diplomacy be More Transparent in the Third Millennium?

1. Can Foreign Offices be more transparent when they address the problems of their local population groups?

1. Recently, the British Appellate Courts had reversed the finding of the Magistrate Courts order refusing the Extradition of Louis Assange to the United States for facing a Criminal Trial for Espionage and violation of the Official Secrets Act. Edward Snowden, who is now somewhere in Russia must be quite happy that he does not face such prospects. I must record that even after the British Appellate Court ordered the extradition of Louis Assange to the USA, I am fairly sure that this is less likely to happen. We also read reports that one of the famous detenus in Tihar Jail had written to Boris Johnson, the British PM, asking him to impose economic and political sanctions against India. The point is, increased Globalisation had maximised opportunities for non-citizens’ interaction with Foreign Governments. Recently, we saw that 2 Canadian nationals were held in Chinese prisons for 2 years until China was able to ensure that the Chinese executive (Annabel Yao) who was detained in Canada (yet bailed out) was able to successfully fight extradition to the USA. We also hear the stories relating to Kulbhushan Jadhav, Vijay Mallya, Mehul Choksi every now and then. Actually, it is the Foreign Office that deals with the other Governments after instructions from the Appropriate Department of Union of India. As a citizen, I feel that nothing much is known about how the Foreign Office deals with the problem as its affairs are even more secretive than the other local Departments. Can the stakeholder citizen groups have a right to know how the Foreign Office proposes to solve the problem?

2. Let us take the case of Kulbhushan Jadhav. I must confess I have been blogging on this matter. one of my blogs related to the trivia that surrounded the famous victory of India in ICJ, whereby, the Death Sentence of Kulbhushan Jadhav has been stayed. For your information, I am providing the link to the blog(dated: 05-08-2019; viewed: 90 times). Second, of the blog related to the evidentiary law implications of ICJ Judgements (dated: 12-08-2019; viewed: 84), My third blog was as late as June 28^th 2021 (viewed: 51 times). It is about 3 years since the first successful Judgement was given. As per the Judgement of ICJ, denial of Consular Protection to Kulbhushan Jadhav is a violation of International Law and a trial held without the compliance of this International Obligation had vitiated the Right of Kulbhushan Jadhav to have a fair trial, even in a Military Court. Considering further that several High Courts in Pakistan had reversed several orders passed by the Pakistani Military Tribunal, for their failure to comply with the minimum due process of law, Kulbhushan can also have a similar chance. Subsequent to the Judgement, India and Pakistan have been sparring on the Right of Consular Access and Pakistan itself had revised the laws relating to the conduct of Military Tribunals. The first question is, “Does Kulbhushan Jadhav have a right to be tried by the normal courts of Law in Pakistan?”, the second question is “Does Pakistan have any special reason to try Mr Kulbhushan Jadhav in a military tribunal instead of a normal court?”, the third question is, “Can the so-called Video graphic evidence of the confessions made by Mr Kulbhushan Jadhav still be admitted in evidence in spite of the fact that this evidence was illegally obtained?”.

This question ICJ had left open for Pakistani Courts to decide. It appears that recently Pakistan had revised its laws regarding the conduct of trials by the Military Tribunal. We can be sure that this will be old wine in a new bottle. Suppose Kulbhushan Jadhav faces a trial in Pakistan, either in a Regular or Military Tribunal, it appears to me that the possibility of Kulbhushan Jadhav getting Justice is very bleak. I will admit that Regular Courts in Pakistan are more likely to conduct a more fair trial than Military Tribunals. Regular courts will demand a higher degree of proof, if (only if), the trial is held as a Public Trial. The issue gets even more complicated because the Government of India is unable to get competent lawyers (in Pakistan) to represent Kulbhushan Jadhav. India had earlier sought Pakistani permission to engage Queens Counsels from the UK which was refused. We all know what happened to Salman Taseer in Pakistan when he spoke in support of a Christian Blasphemy Convict.

3. Soon after the ICJ judgments, there were reports that the Union of India is exploring the possibilities of Mediation through a Gulf country that would facilitate the release of Kulbhushan Jadhav. This may even involve swapping of Espionage Detenus held in India and Pakistan. That is the last thing that we heard about the case. Apparently, the Family of Mr Jadav and the Indian consular representatives managed to visit Mr Jadhav in Military prison. That is the only mercy that he has received so far.

What Next?

4.COVID-19 paralysed international intercourse and even the Judicial process in many countries. Sooner or later Mr Kulbhushan Jadhav will be tried by a Military Tribunal in Pakistan. It is very unlikely for him to get good Defence Lawyers in Pakistan to meaningfully establish his innocence. Pakistan is unlikely to permit Foreign Lawyers to defend Kulbhushan Jadhav in the trial before Military Tribunal. If the trial takes place there, it is likely that Kulbhushan Jadhav will be convicted again and a death sentence will be imposed. I feel it is time for the Union of India to file another case before ICJ and simultaneously initiate enforcement action before the UN Security Council to implement the earlier ICJ judgement.  I believe that the Government of India should insist that if a trial is to be conducted in a Pakistani Court, it must be an open trial under the normal Pakistani Criminal Procedure Laws. Pakistan must permit the accredited International Press to cover the trial. Pakistan should also permit foreign lawyers of Kulbhushan Jadav’s choice to defend him in the public trial. If Pakistan says that it will try him only in a Military Tribunal in accordance with Pakistani Regulations, the members of the Military Tribunal must be drawn from other countries such as Canada, Australia, Malaysia or even Turkey. Such a Military Tribunal should again hold an open trial and can apply Pakistani Procedural Laws so long as it complies with the minimum due process guaranteed under the Covenant on Civil and Political Rights. Pakistan is unlikely to comply with either of these 2 demands on its own, without International Intervention. So, we should either by a new resolution in the UN Security Council seek enforcement of the earlier order of ICJ or initiate a new complaint before ICJ asking for the Trial of Kulbhushan Jadhav by an International Military Tribunal which could even be a bench of the present International Criminal Tribunal. Maybe, the International Lawyers in Delhi know little more than the lawyers in the rest of India as to what the Union of India proposes to do as and when Kulbhushan Jadav is brought to trial before the Military Tribunal.

5. It is, for this reason, I want a little more transparency in the conduct of Foreign Affairs than what we have today. Another issue that I want to highlight is the sad story of Indian Fishermen detained in Sri Lankan and Pakistani prisons. I can understand the Indian Governments inaction in protecting the West Coast Fishermen as they have to deal with an always uncooperative Pakistani Government. I am sure with Sri Lanka the situation is not the same. I read from newspapers that the RBI had virtually guaranteed 500 million dollars for Sri Lankan Govt in Foreign Exchange and yet India is unable to conclude a Bilateral Fisheries Treaty that enables the fishermen of both Sri Lanka and India to fish in the territorial waters of each other!! We should know that until Brexit, France and England had a similar treaty. Now the problems have cropped up there also. We know it because they are a little more transparent. Assuming that Sri Lanka believes that Indian Fishermen are more likely to gain from the treaty than the Sri Lankans, some kind of compensatory grant element can be built into the treaty or some other treaty or some other bilateral arrangement. It is my fervent wish that we, the Indian  International Lawyers should take up the problems of Marginalized local groups in India who face problems with Foreign Governments. It would be better than if these causes are taken up by apparently more neutral lawyers hailing from other Nations. Can anyone bell the cat?