Category Archives: Courts

Analysis of the Jadhav case in the ICJ

Jadhav’s case is based on numerous controversial and contentious premises, especially because it is yet another instance of extreme rivalry between the two nuclear-armed neighbours.

Kulbhushan Sudhir Jadhav, an Indian national and a secret military agent was arrested in Balochistan on 3 March 2016 on allegations of espionage and terrorism against Pakistan. Owing to Jadhav’s two confessional statements, one in March 2016 and the other in June 2017, Jadhav was sentenced to death in April 2017 for espionage. Meanwhile, India insisted that Jadhav was not guilty, classified this decision as a “pre-meditated murder”, and turned to the International Court of Justice (ICJ) for support and help to invalidate Jadhav’s pronouncement of guilt. As a consequence, the implementation of Jadhav’s death sentence was postponed. Approximately one year later, on Wednesday 17 July 2019, the ICJ pronounced its judgment on Jadhav’s case based on the public hearings that began on 18 February 2019. In its judgment, the ICJ had ruled that Jadhav be allowed consular access immediately, and asked Pakistan to ensure effective review and reconsideration of his conviction and sentences. This was in accordance with Article 36 of the the Vienna Convention on Consular Relations 1963 (VCCR). 

Article 36 states that “when a national of a foreign country is arrested, they must be informed of the right to have their country’s consulate notified and should also have the right to regular consultation with their consulate’s officials during their detention and trial.” Perhaps, through this verdict, the ICJ sought to fill all the possible gaps; it wanted to allow a fairer and a more acceptable trial to take place; it wanted to make up for matters that previously went unnoticed when dealing with Jadhav. The fact that Jadhav’s case has so many areas of analyses, each depicting a unique picture of the case, is noteworthy. Initially, Pakistan argued that Jadhav shouldn’t be allowed consular access. Continue reading

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Filed under Courts, Criminal Justice, Criminal law, Discussion, ICJ, India, Pakistan, Politics

Reko Diq: Pakistan versus Gold Diggers

These narratives show how foreign investors are a double-edged sword for Pakistan. TCC was suspected of lending support to Baloch separatists. 

Pakistan has recently been garnering a lot of attention in international tribunals. A recent case is the Reko Diq case, which led to arbitration in the World Bank’s International Centre for Settlement of Investment Disputes (ICSID). In Tethyan Copper Company Pty Limited v. Islamic Republic of Pakistan (ICSID Case No. ARB/12/1), ICSID has ruled that Pakistan has to pay a $5.8 billion penalty to a mining company, the Tethyan Copper Company (TCC). It is an oddity that the Pakistani public has been disabled from knowing the full details of the ICSID arbitration judgment. The condition for the publication of the award is that both parties must consent to its publication and apparently there is no consensus that it should be published, or alternatively there is consensus that it should not be published. Either way that is rather opaque and lacks transparency. Yet we do know the identities of the arbitrators and the costly law firms employed by the parties and all the procedural steps in the arbitration (which is rather pointless indeed without knowing the full and exact details of the final arbitration award). 

It is rather appalling that the award is not in the public domain and the people of Pakistan are being denied access to the full details of the decision. Reko Diq is a region in Balochistan that has large gold and copper reserves. TCC acquired an exploration license in 2006, buying it from the company BHP Minerals. Though this seems a very recent mining project, TCC itself is a joint venture by other foreign companies, and BHP had been granted licenses since 1993 by the Balochistan Development Authority (BDA) under the Chagai Hills Exploration Joint Venture Agreement (Chevja). Now that TCC was exploring Reko Diq’s reserves, it completed its feasibility study in 2010, and applied for a mining lease, but it was denied. Chevja had been challenged by petitioners before. In 2013, the Supreme Court decided that the agreement (Chevja) was void ab initio. In 2009, the provincial government had already terminated Chevja. Continue reading

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Filed under Accountability, Balochistan, Corruption, Courts, Discussion, Economy, Legislation, Mining, Pakistan, World Bank

The President is Powerless to Remove the Prime Minister in Sri Lanka

Our comrade Dr Reeza Hameed explains that ‘The changes brought about by the Nineteenth Amendment are designed to free Parliament and the Prime Minister from subservience to the President. The President no longer has the power to remove the Prime Minister.’

Some commentators have persistently advanced the proposition that, notwithstanding the Nineteenth Amendment to the Constitution of Sri Lanka, the President’s power to remove the Prime Minister is intact. It is a view that relies on a literal reading of the Sinhala text of Article 48(1) in which the phrase “removal from office” appears. I have, in my previous intervention on this subject, analysed the provisions of the Constitution as amended by the Nineteenth Amendment and expressed the view that the President no longer has this power. That interpretation has been questioned on the basis that the words “removal from office” appear in the Sinhala text of Article 48(1); and because the Sinhala text should prevail in the event of an inconsistency, it must follow that the President may remove the Prime Minister. I disagree with this conclusion for the reasons I have given below. The tenure of Prime Minister’s office pre-Nineteenth Amendment is as follows.

The Constitution as enacted in 1978, (which I shall hereafter refer to as ‘the Principal Enactment’), in Article 47, provided for the tenure of the office of the Prime Minister. It stated that he “shall continue to hold office throughout the period during which the Cabinet of Minister continues to function under the provisions of the Constitution unless he (1) is removed by the President, (2) resigns his office, or (3) ceases to be a Member of Parliament.” The Prime Minister shall continue to remain in his office unless and until any one of the three events mentioned above occured, whereupon he would cease to hold office. This provision was repealed by the Nineteenth Amendment which was enacted in May 2015. Continue reading

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The Indus Waters Treaty and the Need to Broaden its Scope to Mitigate Climate Change and Global Warming

The implementation review of the Dhaka Declaration and the SAARC action plan on climate change and ensuring its timely execution under Article IX is a panacea to environmental degradation.

The Indus Waters Treaty (IWT) ratified in 1960 with the arbitration of the World Bank is under a lot of stress due to growing water scarcity in Pakistan and India. This treaty may be considered a successful treaty as it withstood three wars. Yet, with the passage of time, one of the most stressed basins in the world is facing new challenges videlicet climate change, environmental degradation and global warming. There is no mechanism present in treaty to address these challenges due to their negligible significance at that time. The water crisis is a big question mark in Indo-Pak relations. The growing water stress between the two countries is likely to deepen further with current global climate changes. As a result, IWT has come under a lot of pressure due to changes in hydrological, demographic, political and economic environment. This is raising testing and novel questions on the normative, functional and administrative viability of IWT. Pakistan as a lower riparian country is at the receiving end and is suffering from water stress as a water scarce country.

Indeed, the per capital water availability has decreased from about 5,600 cubic meters available in 1947 to 1,032 cubic meters in 2016. Pakistan may become water poor if current situation persists. Pakistan is considered to be one of the world’s driest countries with a single basin. Pakistan’s dependence on external water resources is 76% while that of India is 34%. Annual influx into Indus through Indian Held Kashmir (IHK) regulates Pakistani economy. The basin accounts for 25% of Gross Domestic Product, 47% of employment and more than 60% of annual national foreign exchange earnings. So, Indus basin has critical importance for domestic water needs. IWT allows Pakistan restrictive uses of water. Furthermore, its lower riparian status aggravates the situation. Pakistan strongly feels that India does not follow the technical parameters laid down in the treaty. Continue reading

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Filed under Afghanistan, Climate Change, Courts, Discussion, Energy, India, Pakistan Horizon, Politics, Water

Panama Papers Scandal: Disqualifying Nawaz Sharif for Deception is Fair

Hopefully these proceedings will set a robust process into motion and annihilate Pakistan’s corrupt dynastic politics for good …

Skeletons in the closet have led to the premature demise of Nawaz Sharif’s government yet again and his third premiership has ended in disgrace. But is history repeating itself? The question is especially interesting given that it was “strike three” for Nawaz Sharif. On the third and final occasion, dismissal from the solemn office of prime minister carries the further indignity of disqualification for life. Of course, questions also arise about the exact motivations of the judiciary in disqualifying a democratically elected leader, one who was close to setting a benchmark by becoming the first ever prime minister to complete a full five-year term during Pakistan’s seventy-year history. The ball must get rolling somewhere and the Supreme Court set a powerful precedent for a zero-tolerance approach to the use of deception in politics. However, it remains to be seen whether the high standard adopted by the Supreme Court will be applied across the entire spectrum of Pakistan’s dirty politics which is in dire need of cleansing.

It was an uphill struggle for Nawaz Sharif because he was practising deception in proceedings regulated by the very Supreme Court his PML-N party ransacked in 1997 when photographs of Muhammad Ali Jinnah were desecrated. One problem for the court is that it has many skeletons in its own closet because it has habitually upheld brutal dictatorships applying a perverse “doctrine of necessity”. Rightly or wrongly, the former three-time prime minister has become the second world leader to become the casualty of the Panama Papers, but at least Iceland’s former prime minister Sigmundur Davíð Gunnlaugsson had the dignity to resign promptly. Last year’s disclosures led to the pronouncement of the Panama Papers judgment which established the Joint Investigation Team. Memorably, Khosa J drew unflattering parallels with The Godfather and mocked Nawaz Sharif by recalling the maxim that “behind every great fortune there is a crime”. Continue reading

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Filed under Accountability, Constitution 1973, Corruption, Courts, CPEC, Discussion, Human Rights, Mossack Fonseca, Pakistan Horizon, Panama Papers, PIIA, Politics

A Talk on National Security in Pakistan by NSA General Nasser Khan Janjua

Pakistan is misunderstood and underestimated. Pakistan and India cannot remain enemies forever. Ruling hearts and minds is the key to unlocking Balochistan’s problems. The world must take India to task over Kashmir. 

National security is more important than ever in an overheated global political environment and NSA Janjua addressed the members of The Pakistan Institute of International Affairs (PIIA) on 14 April 2017. Trump’s strikes on Syria, his use of the dreaded MOAB against ISIS/ISIL in Afghanistan, his deteriorating ties with the Kremlin and his standoff with North Korea are examples of global events that demonstrate spiralling volatility in international relations. Closer to home, the destruction of traditional secular power structures in the Arab world has resulted in extreme turmoil, innumerable civilian deaths and untold human misery. Stratospheric levels of terrorism have resulted in new military partnerships. The Saudi conceived Islamic Military Alliance – the “Muslim NATO” – is headed by Pakistan’s former army chief General Raheel Sharif. To see Saudi Arabia’s special forces marching alongside Pakistan’s military during last month’s Independence Day parade was one thing.

But to have also witnessed the attendance of China’s presidential guard of honour in Islamabad as a symbolic show of solidarity must have irked India where the present treatment of minorities must be making its secular founders turn in their graves. Regarding the ongoing bloodshed in Kashmir, it is hard to surpass Arundhati Roy’s sublime conclusion that “India has no option but to colonise itself”. China is keen to show India that Pakistan has friends and that the China-Pakistan Economic Corridor is an important project for Beijing. Mian Nawaz Sharif seems quite secure against his rivals because of the Supreme Court of Pakistan’s decision that, despite clearly unflattering parallels to The Godfather, he is not obliged to resign because of revelations about his wealth in the Panama Papers. Continue reading

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Filed under Afghanistan, BJP, China, Courts, CPEC, Discussion, Events, India, ISIS, Pakistan Horizon, PIIA, Russia, Syria, Trump, United States

Muslim Law: The Need For Reform

‘There is nothing in the Quran which says that a man should marry a young girl … It is not in the best interests of a girl to be married off early. Early marriage robs a girl of her childhood,’ argues Dr Reeza Hameed.

The All Ceylon Jamiyyathul Ulama (ACJU) is opposed to making any changes to the existing Muslim family law. Mufti Rizwi, who is a member of the Saleem Marsoof Committee appointed to look into reforms to the Muslims Marriages and Divorces Act (MMDA) of 1951, has made the oracular pronouncement that the law is ‘perfect in its present state’ and required no reform. Mufti Rizwi also presides over the ACJU. Regrettably, the views expressed by the Mufti and his outfit are anachronistic and obscurantist. Matters relating to Islam and Muslim law ought not to be the sole concern of the ulema. In this comment I have touched upon some issues in the hope that it will contribute to the debate on the need for reform. In Muslim law marriage is not a sacrament but a civil contract. Neither religious ritual nor having it done in a mosque is essential to confer validity to a marriage. A Muslim marriage is contract like any other in Islamic law. Parties to a marriage should have legal capacity to enter into the contract.

There has to be an offer and an acceptance of that offer with the intention of establishing a marital relationship. There must be consideration given to the wife known as mehr. All the schools of law recognise that a person has freedom of choice to enter into a marriage and that he or she cannot be forced into one. The age at which a young Muslim acquires legal capacity to marry has been a contentious issue. The traditionalist view adumbrated by classical jurists is that a person acquires the legal capacity to marry on attaining puberty. In the Hedaya, the manual on Hanafi law, the earliest age at which puberty is attained by a girl is 9 and by a boy at 12. A similar view is adopted by the Shafi School, which is followed by a majority of Sri Lankan Muslims. The presumption of Muslim law as applied in India and Sri Lanka is that a person attained puberty at 15. Continue reading

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