The Jadhav case: round 2

Khwaja Ahmad Hosain

Pakistani barrister Khwaja Ahmad Hosain has written this Wire analysis of what happens next following the decision of the International Court of Justice in India v. Pakistan (Jadhav):

The ICJ notes in its decision that “it is not clear whether judicial review of a military court is available on the ground that there has been a violation of the rights set forth in ….the Vienna Convention”. In reaching this conclusion, the ICJ proceeds on the mistaken assumption that constitutional amendments in Pakistan prevent persons convicted by military courts from relying on breaches of fundamental rights.

The relevant constitutional amendment prevented the law extending the jurisdiction of military courts from being struck down as unconstitutional. It did not restrict the right available to a person convicted by such court from challenging the conviction through a judicial review process. In light of the ICJ’s observations, it seems clear that the civilian courts must consider the impact of denial of consular access on Jadhav’s trial for Pakistan to fulfil its obligations to provide for effective review.

The government will need to proceed with caution in this case to ensure compliance with the ICJ decision. If Jadhav retracts his confession on the basis that it was given under duress and in absence of consular/legal advice, is there any other evidence linking him to the crimes he confessed to having committed? Convictions solely on the basis of confessions in custody are often troubling and unsound. In any case, the government and authorities should be focused on getting the right and fair result in any review and reconsideration, and the aim should not be to uphold the conviction at any cost.