Ministry of External Affairs Government of India

Speaker 1: Firstly I would like to welcome you all in the High Commission of India. We have with us Mr. Harish Salve, he is the Chief Counsel for us in the ICJ case on Mr. Kulbhushan Jadhav. He will now brief the media on the ICJ verdict on this case.

Mr. Harish Salve:I want to start by expressing the gratitude of my country to the International Court of Justice for the manner in which it intervened in this case. It protected Kulbhushan Jadhav, who was on death row, from being executed in a hearing which was put together in a matter of days and today it has delivered a judgement which has gladdened the hearts and once again restored the faith in the rule of law in the International Court of Justice and in the systems which we have, as mankind, put together to protect citizens of the world from state tyranny.

We had challenged the conduct of Pakistan in its brazen refusal to adhere to the Vienna Convention and to allow consular access to an Indian. Pakistan, all along, sought to use the proceedings to make allegations against India of state sponsored terrorism. It repeatedly played out slides of what it claimed were a passport it had recovered from Jadhav and asserted that India has to explain how this passport was put in place.

Not only did the court not get drawn into this but displaying this passport led to the court rejecting Pakistan’s argument that Jadhav’s nationality was uncertain. The court said, if you say that there was a passport which you recovered, true or false. The court said, if you recovered a passport which you rely on and it was issued by India, you could have had no doubt that he was an Indian.

Pakistan ran three preliminary objections, I will not bore you with the details, they were legalistic but some of them may be of interest. In the course of its exchange with India where India repeatedly sought consular access, at one stage, based on the extracted confession which Pakistan played over and over again in the international media, Pakistan told India that they had registered the first information report.

For those who in India had supported Jadhav in what they alleged was his conduct and his activities in Pakistan, the who’s who of India’s officialdom was named in that and at one stage Pakistan claimed that if India were to allow that then it would allow consular access.

In the ICJ Pakistan also ran the case that India has not cooperated in this investigation and therefore India should not be heard to complain about the violation of Vienna Convention. This argument has been rejected.

I have a degree of personal satisfaction that a lot of adjectives were used by Pakistan in its submissions even in replying in the court I characterize them as unfortunate and I said it is my upbringing and India’s tradition which stood in my way of replying to them in that language.

Pakistan had based allegations of, what we as lawyers call, abuse of process and said that was another ground why India should not be allowed the relief it seeks. That has been rejected.

The court has held that Pakistan is guilty of what it, and this is what I have written down when I was hearing the judgement. The court has held that Pakistan is guilty of internationally wrongful acts of a continuing character and it must cease those acts.

I think in the language of diplomacy which is the language of the International Court of Justice this is trenchant indictment.

Personally as a lawyer I am delighted that the court has upheld our argument that while construing the Vienna Convention the ICCPR (International Covenant on Civil and Political Rights) must inform its interpretation.

All this has led to the court giving us final relief. We had ambitiously asked for annulment, the court said we cannot annul but they have said that Pakistan has to do everything to make the Vienna Convention right a living reality. They have to allow review and reconsideration. They have rejected the argument that clemency is a form of review and reconsideration. They have not accepted the argument that resort to judicial review in Pakistan’s court is good enough and that is why they have said that you must allow review and reconsideration.

As I read the judgement, the critical point of review of reconsideration is that he has to be allowed consular access. The review and reconsideration must take into account the potential prejudice caused to him, the implications of his evidence and his right to defence. And it is only such review and reconsideration where our consulate will not only be allowed to meet him, discuss with him, see the papers, examine the evidence against him but also arrange for his legal representation. And then there has to be a fair trial.

Pakistan’s Attorney General asserted that their constitution assures a fair trial. The court has said, you must take all steps necessary. What steps you take are of your choice respecting the sovereignty of Pakistan, but they have said that this choice is not a free unhindered choice. There is a, what they have used a nice phrase, they have said, there is an obligation of result and that result has to be a fair adjudication after allowing him consular access. And most tellingly the court has said, you will take all steps necessary including legislative measures.

So Pakistan’s repeated assertion that our existing laws are good enough and he can get nothing beyond has not been accepted.

So I think I see this judgement with a sense of relief, a sense of gratification and of course they have said that till all this is done there is no question of executing him. So I see this as something which we are happy with and I think it is now a good moment for us to help Jadhav get justice, ensure he has a fair trial and since I know this is a question which you all must be having in your mind, what if, the answer is, as in the other cases the way the court judgment is we can always go back to them if what they give is not a fair trial. Thank you.

Question:…………. Inaudible …………….

Mr. Harish Salve:They have said a fair trial in accordance with the Pakistan constitution. If it is back in the military court with the same rules where outside lawyers are not allowed, we are not allowed, access is not given, evidence is not given, it will not meet the standards. So either they will have to amend the military law and they are laying themselves open to the challenge that the death trial was not a fair trial as contemplated by the court. That is why I said I am very gratified as a lawyer that the court has said that the ICCPR must inform the interpretation of the Vienna Convention.

Question:

Mr. Harish Salve:Pakistan took three months to notify us first time over. The court has held that was a breach and I would, as reading this judgement, I think if one were to be graceful I would write tomorrow and say, please come and meet him.

Question: Sir what is the force of this judgement? Because I understand that it is not binding and court can’t enforce it.

Mr. Harish Salve:What makes you say that it is not binding? Yes, I know some people will suggest it, what do you mean by a binding judgement? Look, if the Supreme Court of India were tomorrow to give a judgement and the Government says I refuse to follow it, what can the Supreme Court do?

The power of all the courts, as we say in our system, the courts have neither the power of the swords nor the power of the purse, their power is the power of public opinion.

If the ICJ verdict is disobeyed we can take measures including by way of sanctions at the United Nations level. Now I am sure Pakistan will not go that way but if some country against whom a judgement is given wants to behave rogue, there are measure available but I am sure Pakistan will not go down that road or at least I hope so.

Question:How big the victory you see the today’s judgement as, and what next for Mr. Jadhav and can you secure his release?

Mr. Harish Salve:The victory is a victory of rule of law and whenever the rule of law wins over state tyranny I consider it personally, perhaps being a liberal at heart, a big victory.

What next for Jadhav, the next for Jadhav is consular access. Hopefully we might even be able to secure, maybe I am being ambitious, a meeting with his family which is unhindered and Jadhav protest his innocence. I am sure if it is a fair trial with the correct legal assistance we will secure his release and if the trial is not fair we can go back and knock at the door of the ICJ.

Question:Prime Minister of India Narendra Modi few hours back has said that justice has been done with Kulbhushan. Do you think it is a beginning?

Mr. Harish Salve:And a big beginning at that.

Question: Mr. Salve, if Jadhav is allowed consular access, will it be you continuing to represent him?

Mr. Harish Salve:Consular access is by the consulate officials. They will go and meet him, his defence will be arranged. I don’t think I have the right to audience either as an English Barrister or as an Indian senior consul in Pakistani courts but I am sure there are fantastic lawyers in Pakistan who will take up his cause.

Question: There was this argument from Pakistan that since Jadhav was supposed to be a spy, Vienna conventions don’t apply to him and I think court has also spoken about it. If you could throw some more light on that.

Mr. Harish Salve: Pakistan, it was one of their main arguments that spy is not allowed consular access. We relied on the fundamental principle that the more serious the allegations greater the need for procedural safeguards.

Secondly, at this stage all that the court has to see are allegations of being a spy. What is in question is the process by which you will prove whether he is or is not guilty of the misdemeanors for which he is being charged. So the court came to the conclusion that on first principles there is nothing which, in the language of the Vienna Convention, excludes this.

Surprisingly Pakistan referred to the Travaux Preparatoires. The underlying papers. We pointed out in those underlying papers the issue of a ‘exclusion’ for espionage had been raised and in fact the person chairing that committee had said don’t reopen this issue and the only concession they made was; the words at one stage suggested was ‘without undue delay’.

Some of the countries said that if you arrest somebody on allegations of spying, if within that day or within 24 hrs. you inform his home state, the others may go missing, so you might give us two, three or four days to round up everybody and then give consular access which is the elbow room available in working any international instrument.

So the court looked at all this and said therefore this argument that it is left out of consular access in the Vienna Convention is wrong. Pakistan also tried raising an argument, which I must still confess, I was not very clear about, it said that customary international law did not countenance consular access to spies. I was wondering why they are even arguing that because we were arguing what is allowed under Vienna Convention and that is exactly what the court said that we are concerned with the Vienna Convention. If customary international law didn’t allow it so be it, nothing turns on that. So on both these grounds we succeeded in getting the court to hold that he was entitled to full consular access rights.

Question:… Since you have known jadhav case so well, how long do you envisage, the process for him….

Mr. Harish Salve:I wouldn’t speculate on that.

Question:What about Jadhav’s safety inside Pakistan’s jail ……………… Inaudible…………….

Mr. Harish Salve:One of the things why consular access was put in the Vienna Convention was if you are in touch with the person in detention you can also look after his well being and if he is not kept in good condition, if he is being tortured, if he is in anyway being mishandled in the jail you can take it up at country to country level.

So the very fact that you have consular access, access of check and safeguard against any abuse in the jail.

As far his allegation that he was kidnapped is concerned, unfortunately we don’t yet have an international court where one could sue countries for kidnapping.

Question:What will happen if he is not given consular access. And can you explain how Pakistan can carry out an effect review with means of its choosing.

Mr. Harish Salve: The consular access has to be given, I thought first part of your question is what happens if he is not given, well if he is not given then it is a violation of the order of the ICJ. We can go back to ICJ and seek further directions if they would help. If a country brazenly defies an ICJ edict there are other provisions including sanctions in the Security Council and other international law remedies available. That is the answer to the first part of your question.

The second is, the court has made it very clear that their Attorney General said that their constitution guarantees a fair trial. They expect Pakistan to do whatever it has to including appropriate legislative measures to guarantee a fair trial. So Pakistan’s conduct is under watch and if what they do is another farcical attempt, believe me, we will be back in the court.

Question: Have we spoken to the family, what is the family’s reaction?

Mr. Harish Salve: I was told to come speak to you before I speak to anybody else.

Question: Was there any word today about how Pakistan communicates with India on what it is going to do next given it took about 20-25 days for them to report officially …………..

Mr. Harish Salve:I don’t know, I mean as we have to do that is why I was late by half an hour to get back on our desk and try and understand the judgement from what we have scribbled or what we saw on the screen and try and understand its implications. I am sure they will have a lot more work to do, we are watching as to what they do; but they are the ones which now have to take measures. So they are the ones who will have to work out a path forward. I was told there is some press release from Islamabad saying that they will respect the judgement of the court. I may not be using the same words which are there in the press release but something to that effect.

Speaker 1:Thank you so much and thank you all for coming.