The ’provisional measures’ ordered by the International Court of Justice in the Kulbhushan Jadhav case accepted India’s contentions on urgency and its prima facie jurisdiction over the Vienna Convention on Consular Relations with regard to consular access. Reactions in Pakistan have largely been predictable and are of dismay — based largely on a Pakistan vs India paradigm. These obscure a central feature of the legal proceedings so far and in the future, that it is a Pakistan military court’s decision, with all its opacity and summary quality, that is and will be, under international legal scrutiny.
What is most significant is that the ICJ judgement makes the Jadhav case a legal test of military courts in Pakistan, by opening up its procedures and decisions for international scrutiny. This not just adds a new ingredient to the existing civil-military cocktail in Pakistan, but also opens up the case considering the complex legal arguments that will be made. At the very least, this may impart uncertainty and unpredictability to the outcomes of this international legal proceeding.
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The terrorist onslaught that Pakistan has faced with such horrifying regularity should have caused deep introspection. Blaming India, or for that matter Afghanistan, has pre-empted such introspection. Within Pakistan, even those disinclined to support these improvisations will now rally in their support to defend military courts. The present order, however provisional, also feeds Pakistan’s sense of victimhood. India, after successfully deflecting Pakistan’s attempts to internationalize bilateral issues for decades, has had its way in the ICJ.
In the aftermath of the horrendous terrorist attack on the Army Public School in Pakistan in December 2014, the 21st amendment to the Pakistan Constitution and corresponding amendments to the Pakistan Army Act were passed, provided for the setting up of military courts to try civilians charged with terrorism offences. Both Bills were passed unopposed, although members belonging to the Jaamat-i-Islami and the Jamiat Ulema-i-Islam (F), Pakistan’s principal religious parties, abstained.
Presidential approval was immediate. If some members of Parliament were unhappy at what was clearly a regressive measure, the tide of public anger and frustration at continued and massive terrorist attacks was too strong to resist. The Constitution Amendment was almost simultaneously, however, challenged in the Pakistan Supreme Court. In August 2015, a full court bench validated the Constitution amendment by a 11-6 majority.
The majority judgement held that there are no limitations on Parliament’s powers to amend the Constitution and the Supreme Court lacked jurisdiction to strike down any amendment of the Constitution. The dissenting judges, on the other hand, observed that the Supreme Court has the power of judicial review and that such review must be exercised to guard against laws based on expediency, or not representing aspirations of the people.
Interestingly both arguments presented in the court, as also the final judgements, were replete with references to precedent cases and judgements in India regarding the ‘basic structure’ of the Indian Constitution. This addition to the Pakistan Army’s portfolio of functions coincided with a marked increase in its public adulation as it battled extremists and terrorists in the tribal areas with a ferocity not seen earlier. The Army was now seen as the only institution capable of standing up to the terrorist onslaught Pakistan faced. Military courts were set up for an initial period of two years. In March this year they were further revived for a further two.
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As the revival went through the legislative process it was however manifestly clear that the anti-terrorism strategy of the past two years was not working. The inability to discard terrorist proxies means that counter terrorism policies remain inherently self limiting and therefore, seriously flawed.
For the revival of the courts, resistance to the move was marginally more than what was seen in 2015 and the process of enactment seemingly required considerable backroom negotiation between the opposition and government. Nevertheless, both in January 2015 and in March 2016 military courts were by and large accepted with equanimity in Pakistan. The present ICJ order will wrap the Pakistani flag even more securely around the military courts and further strengthen the domestic consensus around them.