India wins the first round in the Kulbhushan Jadhav case in the International Court of Justice, thanks to the astute handling by eminent lawyer Harish Salve
For the last few days, the high-level legal battle in both India and Pakistan has drawn the attention of the people and the media of both the countries. And this is between two legal experts—Harish Salve for India and Khawar Qureshi for Pakistan—in the International Court of Justice (ICJ), which is seized with the Kulbhushan Jadhav case.
At the moment Salve seems to have an upper hand in the case, with the ICJ staying Jadhav’s possible execution until a final judgement on the matter. Harish Salve, who led India’s charge against Pakistan at ICJ, is arguably the most expensive lawyer in the country today. But he charged a token fee of just Re 1 to defend Kulbhushan Jadhav. Counsel Harish Salve, on behalf of India, said, Pakistan has violated Vienna Convention by not allowing consular access to Jadhav. Salve said, “The graver the charges,the greater the need for continued adherence of the Vienna Convention. Jadhav has been in judicial custody without any communication with his family,” Salve also questioned the impartiality of the process, questioning the “confession” which was “extracted” from Jadhav when he was held captive by Pakistan forces. He also said that even with Pakistan offering Jadhav the right to appeal, his mercy plea will be heard by “two-star Generals”. This is one of the biggest lacuna that Pakistan’s system has, that a parallel legal system has existed and is run by military which has neither technical nor moral responsibility in Pakistan’s Constitution and democratically-elected government. Last month Pakistan’s Supreme Court’s bar association filed a suit against this 21st amendment, stating that this is violating the fundamental right of people of Pakistan and also of the Article 175 of Constitution of 1973.
The most interesting fact is that “more than 15 years ago, in 2002, there was a curious turn of events when India was forced to face arbitration at an international tribunal in the US initiated by Enron over the closure of the Dabhol power project. Over 6 billion dollars were at stake for India. Salve, who had quit as Solicitor General of India in November 2002, was retained as India’s counsel at the arbitration tribunal. But in 2004, the UPA Government came to power. It appointed a new team of law officers headed by Attorney General Milon Banerjee. To manage the high-stakes arbitration over Dabhol against Enron, the government chose the Fox and Mandal law firm. Government sources said Salve was sounded out whether he would continue as India’s counsel in the arbitration proceedings. Salve confirmed and informed the new Government that he would continue to charge a concessional fee of Rs 100, 000 for a day’s hearing in the US-based tribunal.
However, there was a sudden change of heart and the Fox and Mandal firm was asked to hire Khawar Qureshi. India ultimately lost on counts, the case to Enron and millions of dollars that were paid to Qureshi as fees. Salve also confirmed that time that he had agreed to fight the case for India in the tribunal despite change of government. “It was a professional decision to defend India in the tribunal. But, I learnt from media reports later that Qureshi was hired and I could become his deputy…. So I decided to keep away, wishing India the best.” Salve refused to divulge any more details of how he was replaced by Qureshi in 2004.
Now the interesting question is—Who is the Khawar Qureshi, and what are his such professional qualifications that the then UPA led Government of India which already had a high level qualified lawyer such as Harish Salve, who had proved his worth during the years, replaced him by a lawyer of Pakistani origin?
Khawar Qureshi is a Queen’s Counsel at Serle Court Chambers and McNair Chambers Qatar. His stint at ICJ is not his first, in fact in 1993, he was the youngest lawyer to have appeared in the ICJ as counsel for Bosnia in the Genocide case against (the then) Yugoslavia. Qureshi has taken on numerous cases before English courts and has also appeared before International Arbitral Tribunals; he has advised on matters involving at least 80 different jurisdictions.
On the other hand, Salve qualified as a Chartered accountant and practised as a CA specialising in taxation before qualifying as a lawyer and moving to the legal profession. He began his legal career in 1980 as an intern at J B Dadachandji & Co first as an intern and later as a full-time lawyer. During this time, he assisted Palkhivala in the Minerva Mills case. Salve was later designated as a Senior Counsel by the Delhi High Court. Salve worked as Solicitor general of India from 1999–2002. He declined to be nominated for a second 3-year term due to personal reasons, when his first term ended in November 2002. Harish Salve has a splendid career record so far and his work shows unequaled wisdom with great experience.
Such an important matter, by the then UPA government, was handed over to a foreigner, and also a Pakistani. It shows the mentality of the then government that how serious it was in the affairs of the nation. And even today the Congress leader of the same UPA is not able to forbid his soft attitude towards the Pakistan, at the expense of national security. And now when the Pakistan government has faced flak over its handling of Kulbhushan Jadhav’s case at the International Court of Justice (ICJ), with several legal experts from the country, questioning the strategy adopted and asking why it accepted the global court’s jurisdiction, a senior official in the law ministry told that Pakistan’s leading lawyer Qureshi made two mistakes. One, he did not nominate ad hoc judge before the hearing and he did not respond to the argument of Indian lawyer regarding the 2008 bilateral agreement between India and Pakistan on consular access, he said. The agreement says both the States will not give consular access to terrorists. However, Haresh Salve, counsel for India, contended that the agreement was not registered with the United Nations. The official said the foreign office had also failed to register the bilateral agreement with the UN. Mistrust and agony saw in a statement by a member of Pakistan Bar Council, who said it was a matter of concern that the success rate of Pakistan in international arbitration cases was 2 percent while India’s success rate was 60 percent. We lost important cases at the international forum in the last couple of years. Likewise, we spent more than Rs 1 billion on lawyers’ fees in those cases.
So after this judgment we see that the civilian government and the military leadership are going through the crisis of faith, like so many times before.
(The writer is a journalist and a Pakistan watcher)