Posts Tagged ‘election’

Since ICJ’s decision about Yadav’s case dated 18 May 2017, so much is being written, said and presented on the media. Merits and demerits of this case and objections by opposition are being raised, tables in the TV studios and assembly are being thumped and, mostly, it is being portrayed that Pakistan is (again) going to lose at international forum.

Let us see how ICJ works and what options Pakistan has now.

ICJ’s Modus Operandi

Simply put, when a common citizen hears the word “court” with reference to the implementation of law, there are three main scenarios that appear in mind, viz.,

  • Defence and prosecution lawyers arguing in front of a learned judge, who is appointed based on the qualification and experience. Judge is not supposed to take sides or in other words act as a counsel of one party or other. He listens to the arguments from both sides and issues an impartial verdict, based on the law and constitution of the state.
  • It is understood that every citizen of the state has submitted to the compulsory jurisdiction of the court. A person cannot just leave the courtroom stating that he does not accept the jurisdiction of the magistrate or judge or the court itself.
  • The verdict is binding and whole state machinery stands behind it to enforce its implementation. The very concept of law is diluted if it is not implemented.

Insofar as International Court of Justice (ICJ) is concerned, none of the above stated three conditions is fulfilled.

Briefly, examining, the ICJ on above there bullet points, we see that;

  • The criteria for the judges to be appointed in the ICJ is not only experience, qualification etc. The judges are elected for a period of nine (09) year through voting in General Assembly and Security Council. In order to have their ‘man’ appointed at ICJ, states carry out extensive lobbying in the UN, taking it as a matter of prestige. The very idea of a judge being impartial, unprejudiced and detached, hence, comes under question. That is why an elected judge is considered an abhorrence in civilized jurisprudence.

As the term of a judge nears, he may seek re-election and again, states start lobbying for votes. It must be kept in mind that there is no free lunch nor a free ride.

  • Since states are universally considered sovereign, this leads to the idea of ICJ’s jurisdiction being voluntary and not compulsory. Every state or country makes a declaration to the court, specifying the matters on which it will accept the jurisdiction of the court. This further makes the role of ICJ limited.
  • Although ICJ may pass judgements and give decisions favoring one country or other, there is no such mechanism for ICJ to get its orders implemented. The only option is Security Council and that only if it is moved by any state against other (deemed defying the court orders). Here, again, comes the diplomacy, favoritism and power play. Powerful states lobby in order to get the veto vote in their favor.

From the above points, one can easily draw an inference about the ineffectiveness of the court. ICJ (formed under the charter of United Nations) acts as more of a diplomatic body than a court which only can hear the cases as presented by states and not individuals.

There is also a provision in the ICJ rules that if there is a dispute before the court concerning some state and it does not have his representative as a judge in the bench, it may appoint an ad hoc judge. The ad hoc judge sits with the permanent judges, enjoys same authorities, and perks as those of permanent judges. The basic reason to appoint an ad hoc judge is to have country’s representation in order to place his country’s point of view in front of other judges. In other words, the ad hoc (like permanent ones) judge assumes the duty of the advocate for the country. Which again goes against the very norms of a judicial system.

May be all-of-the-above points contradict the very idea of an impartial justice system, but at international level only this one is prevailing under the aegis of UNO until we do not find a better system.

As we establish a question mark on the credibility, impartiality and authority of the ICJ, let us briefly examine the laws under which ICJ operates. Since there is no international law, which is supreme and sovereign, i.e. acceptable to all of the countries, there exist multilateral and bilateral treaties, international laws and customs, which are supposed to be binding. In fact, when it suits any country bilateral treaties can be scrapped and considered mere piece of paper.

Pakistan’s Options

Let us now examine the case where India has moved ICJ regarding his national, Kalbhushan Yadav, captured by Pakistan and sentenced to death for spying, subversive and state sponsored terrorist activities.

So far, India has; argued on the basis of Optional Protocol to the Vienna Convention on Consular Relations, 1963 (VCCR), Article 36, disregarding the 2008 bilateral agreement and sough the needed relief from the ICJ albeit Pakistan challenged the jurisdiction of the court and simultaneously argued that case to be dismissed because there was no urgency.

To much of Pakistan’s dismay, the court ordered to ‘stay’ the execution till the hearing at ICJ reached its conclusion, scrapping Pakistan’s arguments and favoring India. The judgement implies that Pakistan has flouted the Vienna Convention Agreement.

The court’s observation can be summarized in simple terms that Pakistan argument that VCCR is not applicable to spies, terrorists etc. since in Vienna Convention Spy is not mentioned at all. Pakistan can also not argue on the double passports of the Kalbhushan Yadav, one of which contains the Muslim name since as the accused confessed in the statement that he was from India, his nationality is established that very moment and irrespective of the name on passport, he is entitled to consular access as per the VCCR. It also goes without saying that court has determined that it has jurisdiction in this case, under Article 36 and 1 of the VCCR. Pakistan can also not move UN to ratify the 2008 bilateral agreement, unilaterally.

Pakistan has requested the court for expedited hearing of the case. Considering, how ICJ works, its (non)impartiality, lobbying by the states, diplomatic relations and international pressure Pakistan may not succeed in getting a favorable judgement.

Pakistan would neither like to present all of the evidences against commander Yadav of his subversive activities in the court, nor seem to grant consular access to the “self-confessed spy and terrorist”. It therefore can be forestalled that Pakistan would raise objection on the very jurisdiction of the court, as it seems to be only option.

Once Pakistan admits the jurisdiction, it is highly unlikely that Pakistan would be able to refuse the court’s orders as India can then move Security Council and considering our current diplomatic debacles, we cannot rely on efficacy of china’s veto vote as well.

Everything is being said and written on the media about jurisdiction but very less on the Pakistan’s Declarations Recognizing the Jurisdiction of the Court as Compulsory dated 29 March 2017 in which Pakistan declared 9 such matters where ICJ’s jurisdiction doesn’t apply. Article ‘e’ specifically excludes the jurisdiction of ICJ where the subject is related it Pakistan’s national security. Pakistan may (must) contest this point in the future. I wonder as to why the article ‘e’ was not invoked in first hearing.

I am sure that Pakistan’s best diplomatic minds and authority on international relations and laws must be evaluating the options or would already have framed the Pakistan’s point of view in this regard, which may be opposite to my assertion. However, currently, to me it seems that if Pakistan goes on to accept the jurisdiction of the ICJ and tries to contest the case on its merit, it will be a lengthy, cumbersome and tiring process (from 1947 till 2017 ICJ has given judgement on 160 cases i.e., 2.28 cases per year) and Pakistan would definitely wouldn’t want that.

In my opinion, if Pakistan wants to take this case to a logical end as per its domestic laws, its focus must be on the jurisdiction of the court and invoking Article ‘e’ of the Declarations Recognizing the Jurisdiction of the Court as Compulsory dated 29 March 2017.

(Reference taken from ‘Roses in December’ by ‘MC Chagla’)

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Advisor: I see that our graph of popularity is going down day by day. People are on the streets vouching for even a dictatorship which could provide them with electricity and gas, a leadership which could control price hike in the petroleum products and lower down the poverty level.

President: these things are there since our party took charge of the government. What’s new in it?

Advisor: sir nothing is new, I just wanted to make a point that this is our last parliamentary year and if this remains the same then for sure our party is going to lose significantly.

President: who are the opponents to whom you are scared and scaring me as well?

Advisor: The biggest opponent is the masses.

President: Noted.

Advisor: (sigh)

President: OK. Let me know what the driving force is, behind the street protest as you know we are doing our level best to meet the state people requirements. We cannot provide subsidy on all the products as our GDP is already pretty low. If we start providing subsidy on each and every product than country will go bankrupt in no time.

Advisor: understood sir, but I have a solution to this which I wanted to discuss with you.

President: you know I have no time for this. You may table your proposal in next cabinet meeting.

Advisor: Will do, but if I am confident that you have agreed upon, I will be confident in doing so.

President: Make it short.

Advisor: Sir, how about

–          widening the tax net

–          imposing the tax on the agriculture

–          Firing all the “political hires” from the institutions and bringing on board the people on merit.

–          Making FBR an independent institution, I know it is already independent but only in papers.

–          The privatization commissioning to be made more and more transparent.

–          Commercial and Technical Bidding of the major projects like oil/gas etc to be transparent.

–          Lowering down the Presidential and PM house expenditures and spending on the education.

–          Start relying on ourselves and start to explore new mineral and oil/gas reserves. No need calling for third party companies to do so. Our country must establish institutions of its own. The expertise can be developed by getting overseas trainings etc.

–          Government must give priority to opening new schools and colleges with a vision that a school  shall be turned into college in and a college into university in maximum 15 to 20 years. Keep the standard of universities and colleges so high, zero tolerance policy on standard of such institutions, so that foreigners can come to our country for education. This in turn shall prove to be big economic asset for country and our party as well. Our party shall be commemorated in history in golden words.

President: are you finished or yet there are other points?

Advisor: Sir I have more.

President: I don’t have time for all this right now. You may table them in next cabinet meeting and I will make sure a working committee is set up to ponder upon your thoughts. Your main concern was party and next elections?

 Advisor: Yes

President: I have another plan for that.

Advisor:  And what’s that?

President: You know that our masses literally crave for foreign teams playing cricket in the country and our masses also want disputed territorial issues to be resolved with neighbouring country. If the load shedding and gas issues are resolved in next three to four months than people shall forget the previous years.

Advisor: I second.

President: to start with, I am going to pay a visit to neighbouring country to ask if they can send their cricket team to our country. Then I plan to do a treaty to buy electricity from neighbouring countries. You will see the things moving in favour of our party as now I am going to take personal care about bashing other parties as well. And yes don’t forget to present your points in the next cabinet’s meeting.

Advisor: Thinking…