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Explainer: The International Court of Justice Review and Reconsideration) Bill 2021

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Explainer: The International Court of Justice Review and Reconsideration) Bill 2021

The International Court of Justice (ICJ) in Jadhav (India v Pakistan) had directed Pakistan to undertake an ‘effective review and reconsideration’ of the conviction and sentence of Jadhav and also to grant consular access to Jadhav without further delay. Following ICJ’s judgement, Pakistan promulgated the International Court of Justice (Review and Re-consideration) Ordinance, 2020 that allowed Jadhav to file an appeal before the Islamabad High Court (IHC) for review and reconsideration of his conviction and sentence.

An Ordinance is a temporary law promulgated for specific circumstances. In order for an Ordinance to be made into law, it has to pass through the appropriate legislative steps. Accordingly, on 10 June, 2021 the National Assembly of Pakistan passed a bill titled ‘The International Court of Justice (Review and Reconsideration) Bill 2021 to formalize the 2020 Ordinance as a law. This article provides a legal analysis on the text of the Bill, and assesses the impact it might have on the Kulbhushan Jadhav’s proceedings in Islamabad High Court.

The Bill was adopted by the National Assembly on June 10, 2021 after approval from the 21-member standing committee. The Bill, in giving effect to the judgement of the International Court of Justice (ICJ), aims at reviewing the conviction of Indian spy Jadhav and provides him further right of appeal and reconsideration and legally obliges Pakistan to grant consular access to Jadhav.

According to the Bill the High Court has the power to review and reconsider where the ICJ in relation to a foreign national passes an order in respect of rights under the Vienna Convention of Consular Relations or a foreign national is aggrieved in respect of the rights available under the same.

Pakistan’s Law Minister also clarified that the Ordinance was not person specific. “It is for the future as well so that if a similar situation arises in the future, the concerned state does not file a case in the ICJ but approaches the Islamabad High Court instead.”

Opposing the Bill, the committee’s members from the Pakistan Muslim League-Nawaz (PML-N), Pakistan People’s Party (PPP) and Jamiat Ulema-i-Islam (JUI-F) termed the bill an NRO (National Reconciliation Ordinance) for the Indian spy.

Federal Minister for Law and Justice, Barrister Faroogh Naseem, rejected the opposition’s criticism of the bill and said it had been introduced in compliance with directives of the International Court of Justice (ICJ).

He retorted by saying the PML-N government had left a loophole, of not providing consular access to Jadhav, during proceedings of his court martial. He added that his ministry had sought to pre-empt a possible Indian move of filing a contempt petition against Pakistan in the ICJ by promulgating the said ordinance.

However, India is still not convinced with Pakistan having given Kulbhushan Jadhav a right of appeal in the Pakistani high courts. It says that the Bill is full of shortcomings and is a breach of the ICJ Judgment.

“It does not create a machinery to facilitate effective review and reconsideration of Shri Jadhav’s case, as mandated by the judgement of the International Court of Justice,” the Ministry of External Affairs (MEA) spokesperson Arindam Bagchi said.

India was looking for every excuse to file a contempt plea against Pakistan with the ICJ. In such a scenario, the country could face sanctions if the matter was referred to the United Nations Security Council (UNSC). Barrister Faroogh Naseem said, “We have to follow ICJ decisions as we are part of a comity of nations. If we had not promulgated this ordinance, then India could use Article 94 of UNSC and Article 60 of ICJ statute. We cut off India’s hands with finality by bringing in this ordinance. Pakistan has done this responsibly.”

He pointed out that neither India nor Jadhav had filed a petition before the Islamabad High Court to seek relief permissible under the ICJ verdict. The Law Minister of Pakistan also clarified on the floor of the National Assembly that Indian spy Kulbhushan Jadhav’s sentence “had not been forgiven” and neither had the government given him an “NRO”.