Kulbhushan Jadhav: Indian Spy, ICJ and Pakistan.

Audi Alteram Partem

-No one should be condemned unheard-

It is a fundamental principle of natural justice and lies at the very core of jurisprudence as an indispensable cornerstone. This principle is to be followed without exception in all circumstances. The wisdom behind this principle goes beyond the ethical and moral standards it is based on; it aims at bringing about two conflicting views in an effort to reach a just and fair conclusion. Truth cannot not be found in the vacuum of a singular narrative (that of the prosecutor) but it comes out of the different narratives that expose the relative strength or the weakness in the conflicting positions.

Kulbhushan Yadav was caught by Pakistan’s security agencies and a video-confession was obtained at an undisclosed location. Later on, we were told that he was sentenced to death by the military court. India demanded that it be given access to Jadhav, which was denied and although avenues are open for the convict to appeal against his conviction, there is little chance that any one in Pakistan would take up his case.

Following due process helps us ascertain not just the nature and extent of criminal activities the accused has undertaken but also exposes his accomplices and modus operandi. A trial conducted under the blanket of military courts will never be approved internationally as a fair trial, because it is bound to default on the requisites of a free trial. And the truth will remain shrouded and obfuscated under the garb of ‘national security’ and ‘classified information’. We will never know the whole story.

Jadhav, if he is the man we are told he is, must be brought before a court of competent jurisdiction and must be provided with consular access and a lawyer to defend him. To wrap up all the principles of natural justice, to convict an enemy spy, would only mean that either we have insufficient evidence or that we have a disregard for due process. I have a feeling that its both. But then again, how can we know unless when he is tried in-camera and is not given a chance to defend himself?

If he is found guilty of the charges, he should be punished as per law. I do not demand clemency for him, I only demand justice and fairness.

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As for the ICJ’s Order regarding Provisional Measures, little has been left for speculation. The court clearly indicated that the arrest, interrogation and conviction of Jadhav reeks of wrong doing, and that Pakistan’s denial with respect to India’s demand for counsellor access is unlawful. Being signatories of Vienna Convention, both countries have agreed to follow a set framework whenever a citizen of the other state is arrested or convicted.  And thus, Spy or not, Pakistan must give Jadhav a fair trial.

While India sent its leading Lawyer Harish Salve to present its case in ICJ, Pakistan had to call a British Barrister to its rescue. This exposes another weakness of Pakistani government that has failed to employ an expert in International Law from its own ranks. Do we not have a single International Law expert amidst our foreign office cadre? How about our leading legal minds that could have made a better case than MR. Q did, and for less?  While Harish Salve received only 1 rupee for his services to the Government of India, we have yet to know at which exorbitant price did we hire the ‘Queen’s Counsel’ Khawar Qureshi to represent Pakistan.

 

In many ways, Jadhav’s case shows all that is wrong with our country. A policy of denial whenever it comes to accepting our mistakes, a disregard for due process, and a knack for making bad situations worst by idiotic decisions.

After being repeatedly humiliated at the international stage, Pakistan has been caught once again with its pants down. While the world is watching us flaunt our incredulity, the state is too busy sucking its toes to understand that they are in midst of an embarrassing situation once again.

Lynching students, electing corrupt politicians to office and harbouring extremists has been the way here, so no worries. Things will remain as they have always been. Jadhav will never see the outside of a prison even if he is not hanged.

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