New Delhi: As the International Court of Justice on Thursday ordered Pakistan to take all measures to ensure that Kulbhushan Jadhav is not executed till the final decision of the court, experts told News18 that the only way India can save Jadhav is "to stretch the case at the ICJ as long as possible."
The president of the court, Ronny Abraham, who read out the decision, rejected Pakistan's arguments that the court did not have jurisdiction and stated that it would hear the case and seek arguments from both the sides.
Even Right of Clemency, which is guaranteed under Article 45 of the Constitution of Pakistan, will expire on Friday. The clause allows an appeal within 40 days, and Jadhav’s 40 days end on May 19, 2017.
Shashank Kumar, a Geneva-based public international lawyer who has also previously served as a law-clerk at the ICJ, told News18 that it would be in the best interest for India if it "stretches the case at the ICJ as long as possible."
"Now that the easy part of the case is over, the Court will consider many of these issues in greater detail. Importantly, a reversal of Jadhav's conviction and sentence and his subsequent release — the relief requested by India — is far from a foregone conclusion, as the ICJ may simply require Pakistan, as it has in the past cases of this kind, to "review and reconsider". Jadhav's case by means of its own choosing, taking into account the violation of the Vienna Convention on Consular Relations rights. Pakistan could presumably carry out such review and reconsideration under its domestic legal system. At this stage, therefore, it would probably be in India's interest to stretch the case at the ICJ as long as possible, as this would at least ensure that Jadhav is not be executed by Pakistan while the case is pending before the Court," said the legal expert.
Shashank added that substantively, India’s ultimate request is that the ICJ sets aside or reverses Jadhav's conviction and orders his release.
"It is, however, far from clear whether the Court can and will consider such a request by India. In past cases concerning denial of consular access, the Court has usually ordered the respondent country to undertake a "review and reconsideration" of the sentence and conviction by a means of its choosing, e.g., through the domestic judicial process, taking into account the violation of the rights under the Vienna Convention on Consular Relations," he said, adding that there was no guarantee that such a review would be taken seriously by Pakistan.
Ashok Behuria from the Institute for Defence Studies and Analyses agreed with his opinion.
"Placing trust on Pakistanis has to be looked at carefully. We are still uncertain whether Pakistan will abide by the jurisdiction," said Behuria, adding that the fact that Jadhav’s time for clemency is up tomorrow, India should be wary of how Pakistan moves on the 41st day after the conviction.
Pakistan’s Dawn News quoted Justice (retired) Shaiq Usmani, who called the decision alarming because "ICJ does not have any jurisdiction." The retired judge said that the case will continue in Pakistan. "Until the ICJ gives it verdict, the case will go on in Pakistan. But he cannot be executed until the stay order is there. The proceedings will continue."
"I think 40 days are over and the time to appeal is over. But if they want they can accept the time. The FGCM court can extend the time if they want," he added.
Shashank, who has worked as a law-clerk at ICJ, laid down the expectant procedure.
According to the official statement of Pakistan's Attorney General, the nation believes that ICJ has clearly underscored that the provisional measures are without prejudice to the final determination of the merits and jurisdiction of the case. "The provisional measures are a procedural process only to enable the Court to have full consideration at a later hearing... In addition, Pakistan attended because of its conviction that the only way to resolve all outstanding issues is through peaceful means. We are confident that India would not be able to hide the subversive activities it is trying to carry out through its agents like Commander Jadhav. India has no substance in the case. As far as Pakistan is concerned, the Court's decision today has not changed the status of Commander Jadhav's case in any manner... We are determined to pursue this case to its logical end," he said.