By Yasser Latif Hamdani
July 22, 2019
People have some really warped ideas about what it means to be patriot. In my opinion you are not a patriot if you defend the indefensible and accept status quo. The self styled patriots in Pakistan believe that by burying your head in the sand like an Ostrich you can evade the real and present dangers to the country but they are misleading the people. In the process Pakistan has become the laughing stock of the world.
Three separate and distinct events last week have further dented Pakistan’s image as a state globally. It started with the ICSID decision against Pakistan on the RekoDiq issue, which has led to $6 Billion dollars in penalty. ICSID’s decision was a searing indictment of Pakistan’s ill thought out actions vis a vis international contracts. This way no one will ever come to invest in Pakistan. Fulfilling one’s contracts is the irreducible minimum of being a responsible state. The way our Supreme Court acted during Chaudhry Iftikhar’s activist times has cost the country dearly. No one is going to take the former Chief Justice to task for obvious reasons. However the tribunal’s comments about the Pakistani Supreme Court are enough to embarrass any Pakistani.
Then came the ICJ decision on KulboshanJhadav. Pakistani government’s attempts to spin it as a victory are as laughable as the Indian claim of downing an F-16 in February air skirmishes. Obviously ICJ was not going to acquit Jhadav or tell us to send him back. That would be beyond the body’s mandate and jurisdiction. So that is no victory. It is not that we were not represented well. I do not think we could have found a better counsel than Khawar Qureshi QC. It is just that our case was so untenable in international law that even the best of lawyers could not have saved us. Pakistan and India cannot bilaterally read in exceptions to Article 36 of the Vienna Convention on Consular Rights. Our insistence that some how an exception could be made for individuals accused of espionage and terrorism amounted to defeating the very purpose of Article 36. Such spurious arguments can only work when we read out fundamental rights from our constitution as we often do but an international tribunal comprising the finest legal minds of the world would have never bought it. So Pakistan was handed a defeat at the ICJ 15 to 1 on every issue. India’s brilliant counsel Harish Salve took maximum advantage of the weakness of Pakistan’s case. Like Khawar Qureshi, Salve also knew that India’s prayer for acquittal was not going to be entertained. It was more of a maximum demand. Contrary to what Pakistan’s state officials have telling people, ICJ did not declare Jhadav a spy and it did not accept an exception to Article 36. It also imposed a continued stay on execution of Jhadav’s sentence till review by Pakistan’s civilian courts. In doing so it even stated that if necessary Pakistan would have to legislate to ensure that civilian courts have oversight. It pointed out that Pakistani Constitution’s Article 199(3) bars the writ jurisdiction over persons subject to military proceedings.
A great burden will rest on the shoulders of the lawyers and the legal who might represent Jhadav in these review and reconsideration proceedings. For all practical purposes there will have to be trial ab initio. It would help Pakistan’s case if a special bench is created for this trial because simple appellate proceedings at the superior courts might not be enough. Jhadav would have to be treated as innocent till proven guilty. The prosecution will have to make the case in front of the world really and lawyers defending Jhadav would have to leave no stone unturned in discharging their duties. There is no room for prejudgment. All angles and all theories would have to explored, including those which might otherwise injure our national pride. In the event that the prosecution proves its case beyond reasonable doubt, we would also have to consider commuting the sentence from death to life imprisonment. The choice now really is whether we are a nation of laws, justice and fairness or we are a mob out for vengeance.
If these two events were not enough, then came the third major shocker for Pakistanis. Shakoor Bhai, a bookseller in Rabwah, had been arrested a few years ago for selling his religious books. In his 80s, he was given rigorous punishment for three years for the crime of being an Ahmadi. Finally released after three years he was invited by the US ministerial on religious freedom. The invitees of this ministerial also met President Trump, where he recounted what befell him. Pakistan’s laws targeting Ahmadis violate every single international covenant and also the Article 20 of the Pakistani Constitution. These laws also go against the solemn promise made by Pakistan’s founding father to Ahmadis in the 1940s. What we have done to the Ahmadi community in Pakistan is downright criminal. If President Trump raises the issue of religious freedom in Pakistan during his meeting with Imran Khan, I wonder what new denial our Prime Minister will offer. Will he say that it is okay for Pakistan to jail Ahmadis for believing that they are Muslims?
Pakistan’s image will continue to be hit badly so long as we keep deviating from the solemn promises made by Mr. Jinnah to Pakistanis and especially religious minorities. Pakistan must be a responsible member of the comity of nations which respects rule of law, religious freedom and freedom of speech. As things stand right now, we are not a responsible nation state. The surest way of becoming that is to implement Jinnah’s 11 August speech in letter and spirit. Otherwise I fear that what happened to our Foreign Minister at an international event will continue to happen routinely. How long will we put up with such international humiliation and ridicule? For the sake of our children’s future rectify this situation now.
Yasser Latif Hamdani is an Advocate of the High Courts of Pakistan and a member of the Honourable Society of Lincoln’s Inn in London
Source: The Daily Times, Pakistan