By Syed Sharfuddin*

Executive Summary

Contrary to the general feeling in Pakistan that India’s unexpected action of 5 August 2019 has sealed the fate of the Indian Held Jammu and Kashmir (IHK), the move has opened new opportunities for Pakistan and Azad Kashmir, which were not possible to avail prior to 5 August. Rather than copying India’s action in Azad Kashmir or pursuing a military solution, Pakistan should follow a constitutional and democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India.

It is time for the Kashmiri People living inside and outside Kashmir to adopt their own ‘23rd March Resolution’ to accede to Pakistan. It is time that Article  257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan. It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances. It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.

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While exposing the hypocrisy of the world’s so called largest democracy in illegally applying the annulment clause in Article 370 of the Indian Constitution to withdraw the special status of Indian Held Jammu & Kashmir, and rushing through a J&K Reorganisation Bill in Rajya Sabha and Lok Sabha on 5 & 6 August respectively to bifurcate J&K into two Union Territories, this action has also highlighted several challenges and opportunities which may have serious implications for peace and security in the Sub-Continent.

Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of steps without going to war with India.

As Pakistan’s Prime Minister Imran Khan said in Muzaffarabad on 14 August 2019, in the event of a breakdown of peace in the Subcontinent, the responsibility for not acting in time to restrain India will rest solely on the shoulders of the peace keeping organs of the United Nations  whose mandate includes upholding  the rule of international law, protection of human rights of minorities by ethnic cleaning and genocide and maintaining inter-state peace.

Challenges:
India’s illegal action will embolden the hawks in the BJP and act as a cue for Hindu extremists to harass Kashmiri Muslims. They will increase the Indian state sponsored repression on the Kashmiri Muslims with a view to making them flee their homes in the same way as Israel has done to the Palestinians in order to illegally acquire their lands through forced purchases, as well as armed intimidation. The process of ‘Hinduaisation’ of Kashmir will begin with a heavy Hindutwa agenda applied in education, jobs and businesses to the disadvantage of local Muslims.

The Indian State may invite non-Muslim families presently residing in Jammu and Ladakh to move to the Kashmir Valley to change the demography of the present Muslim-majority region. It may also provide financial incentives to those Kashmiri Hindus who left Kashmir in the past decades to return to the Valley and settle there in order to change the numbers of Kashmiri population.

The action of BJP Government on 5 August 2019 in regard to the State of Jammu and Kashmir has changed the seventy-year old status quo on the disputed territory on which India and Pakistan have gone to full-scale war twice and exchanged artillery fire on the Line of Actual Control without a single week passing peacefully.

The Indian State many also allow Dalai Lama and his followers to settle in Ladakh to create a buffer between India and China. Although China will not like this resettlement but it won’t be able to do anything about it because after 6 August 2019, Ladakh has effectively become a Union Territory without any legislature. If China does not challenge India’s action in Ladakh, it will mean whatever India does in Ladakh in the future will be its internal matter.

Having swallowed up the Sate of J&K in the Indian Union by repeating the pattern of earlier mergers such as Hyderabad, Junagadh and Manawadar, the Indian State will move next to claim Pakistan’s side of Kashmir, including Gilgit and Baltistan. This will effectively place Pakistan in a defensive position and make it hard to save its own part of Kashmir.

Contrary to the general feeling in Pakistan that India’s action of 5 August 2019 has sealed the fate of Jammu and Kashmir, the abrogation of IHK’s special status by India opens many opportunities for Pakistan and Kashmiris, which were not possible prior to 5 August.

Opportunities
Ironically, India’s action has given a timely opportunity to Pakistan, as well as to the people of Kashmir to revisit their strategy on Kashmir. This was not possible to be done prior to 5 August 2019.

Until now India had used Article 370 of its Constitution to fool those Kashmiris who had co-opted with the Indian State to exercise their autonomous status and have their own Legislative Assembly to enact laws for the people of Indian held Jammu and Kashmir. The withdrawal of the special status of IHK by India on 5 August 2019 has ended the delegated powers which the institutions of the State of J&K enjoyed on behalf of the people. In the absence of an autonomous State and dissolution of their own Assembly under Article 370, these delegated powers have returned back to the people of Indian held Kashmir.

The people of IHK are now free to convene a Grand Congress of Kashmiris living on both sides of the border in any neutral place, such as London, Oslo, New York or Toronto to pass a resolution expressing their political will to reject Indian rule and accede to Pakistan. Such as resolution will be no less historic than the 23rd March resolution of 1940 adopted in Lahore in favour of Pakistan.

Unlike the Indian Constitution, which claims the State of J&K as part of India with its territory immediately before the commencement of the Constitution on 26 January 1950, the 1973 Constitution of Pakistan makes no such claim about J&K, nor sets the boundaries of its territory. The only reference to J&K in the Pakistan Constitution appears in Article 257 which states that: “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State.” Of course, this is not a legislative oversight but a deliberate omission by the drafters of the 1973 Constitution to keep the high moral ground on Kashmir for a plebiscite in accordance with UN Security Council’s resolutions and India’s erstwhile promise to the international community to implement these resolutions. But as India’s illegal behaviour subsequently proved, in the ruthless exercise of power morality is never the winner.

The 5th August action by India has ironically opened up a golden opportunity for Pakistan to make a formal claim on J&K in the Pakistan Constitution. Through a Constitutional amendment of two-third majority of both Houses of Parliament, Pakistan can now claim the entire state of J&K, including the territory held by India as the territory of Pakistan just as India has done in its Constitution. Pakistan’s Constitution should also define the territorial limits of the entire State of J&K as has ben done in the First Schedule of the Indian Constitution.

This amendment could not have been possible prior to 5 August 2019 as India would have taken a serious view of it and even regarded it as an unfriendly act worth undoing by force. However, following its own illegal action in IHK, Pakistan is legally entitled to make these amendments in its Constitution and state that while it claims the entire state of J&K as part of Pakistan, the part occupied by India is challenged by Pakistan and will be acquired at an appropriate time which suits its national interest.

Annexation of Azad Kashmir to Pakistan following India’s illegal action in a tit for tat reaction will not only play into the hands of the BJP government’s strategy which may want Pakistan to do just that but it will also seal the fate of Kashmir to a permanent status quo along the line of actual control. It is also possible that President Trump’s offer to Pakistan’s Prime Minister last month for the US to mediate in resolving the Kashmir dispute may have this scenario in mind. Furthermore, annexation is not the answer because two wrongs cannot make a right. Instead of annexation, Kashmir’s accession to Pakistan should follow a democratic process in which the political will of the people of J&K on both sides of the LOC should be the decisive factor. This process may involve a number of democratic steps without going to war with India. These steps are as follows:

Democratic Step 1:
All expatriate Kashmiris living outside India and Pakistan should convene a Grand Congress in a Western country and adopt a people’s resolution asking the Azad Kashmir Government (the only neutral Kashmiri administrative unit left after the annulment of the special status of IHK) to consider their accession to Pakistan as its 6th Province (the 5th Province already decided by the Parliament of Pakistan is Gilgit & Baltistan). Kashmiri leaders inside IHK who are able to travel or send video messages should support the convening of this Grand Congress and even address it electronically from their homes where they are under house arrest, if possible.

The UK will be an ideal location for holding this Grand Congress as a large number of expatriate Kashmiris live in this country and also because the UK was the colonial empire of the Sub-Continent India and Pakistan, which masterminded the messy partition of 1947, including the disastrous decision that Princely States of the Raj will decide their own accession to either India or Pakistan without realising that India could apply double standards to Hyderabad on the one hand and Kashmir on the other. No other country is more aware of the historic injustice done to the people of Jammu and Kashmir than Britain.

There is only a small window of time available to convene the Grand Congress. If it is delayed, the opportunity will be lost and the momentum to drive all sections of the Kashmiris to agree to accession will lose steam. Pakistan should provide moral and logistical support to the Kashmiri expatriates to meet and adopt a resolution addressed to the Azad Kashmir government and its legislature.

It is time for the people of Kashmir to adopt their own 23 March 1940 Resolution to accede to Pakistan

Democratic Step 2:
Following the passage of a resolution by the people of Kashmir meeting to decide their future in a neutral and independent country, the AJK Government should take note of the free expression of the political will of the people of Jammu & Kashmir and adopt a resolution of accession to Pakistan as the 6th Province of the Federation of Pakistan and request President Masood Khan of Azad Kashmir to consent it to and forward their request to the Government of Pakistan.

It is time that Article  257 of the 1973 Constitution is amended by two-third majority of a Constituent Assembly in Pakistan to claim the whole of Kashmir as part of Pakistan.

Democratic Step 3:
Upon receipt of this request from the President of Azad Kashmir, a joint session of Pakistani Parliament should be convened to consider the accession request and declare the whole of J&K, including IHK as the territory and jurisdiction of Pakistan.

It is time that the Supreme Court of Pakistan allows the Federation of Pakistan to officially name Gilgit-Baltistan as the fifth province of Pakistan using the principle of fundamental change of circumstances.

Democratic Step 4:
The Joint Session of the Pakistan Parliament should convert into a Constituent Assembly meeting in a Special Session to amend the Constitution of Pakistan to give effect to the changes required in declaring the whole of J&K, comprising Azad Kashmir and IHK as an integral part of Pakistan. There should neither be an annexation of Azad Kashmir nor any departure from the above steps to ensure that the entire process is democratically followed to its logical conclusion.

It is time that all this is accomplished swiftly to strengthen the constitutional and legal case of Pakistan on Kashmir before the dust settles and the current most significant development in IHK becomes the new normal in India-Pakistan relations.

Democratic Step 5:
In the final step, all countries, including the UN Security Council’s five permanent members should be briefed by Pakistan on the democratic steps taken by Pakistan to ensure that Pakistan’s reaction to India’s illegal annexation of IHK in violation of international law and UN Security resolutions is proportional, peaceful, and in accordance with the wishes of the people of Kashmir and the people of Pakistan as reflected by the decisions taken by their representative bodies.

This should be done before the dust settles and the current most significant development becomes the new normal in India-Pakistan relations.

Also see related article Post August 2019 Status of Jammu & Kashmir and Options for Pakistan

London 7 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser on Asia in the Political Affairs Division of the Commonwealth Secretariat, London from 2000 to 2006.

By Syed Sharfuddin*

Executive Summary
In the aftermath of India’s revocation of Article 370 of the Indian Constitution on the disputed territory of Indian Held Kashmir, it is no longer feasible for Pakistan to maintain the status quo on Kashmir along the UNMOGIP observed Line of Control. As an immediate first step, Pakistan should honour the wishes of the Kashmiri people from Azad Kashmir, as well as from Indian Held Kashmir, to join Pakistan by convening an extraordinary session of the two Houses of Parliament to discuss Kashmir and amend the 1973 Constitution to make Kashmir the 6th Province of Pakistan comprising the present Azad Kashmir and the entire Indian Held Kashmir minus Ladakh. Of course, the process will start from a Congress of the Kashmiri people from both parts of Kashmir meeting in a neutral capital, such as London or Norway, or a city in the USA, and passing a resolution, similar to the historic 23rd March resolution of 1940 in Lahore, to reject India’s occupation and join Pakistan. Acting on this resolution, the Azad Kashmir Assembly should meet and pass a resolution on behalf of the people of Azad Kashmir and the people of Indian Held Kashmir requesting Pakistan to accede to their demand. This will trigger Pakistan’s own response by convening a joint session of the federal Parliament and amending the 1973 Constitution to make Kashmir the 6th province of Pakistan whose territory shall comprise the present Azad Kashmir and the territory of Indian Held Kashmir minus Ladakh. A further provision will be added in the Constitution to reflect this in the international boundary of Pakistan and suggest that the new boundary will take effect from the day Indian occupation terminates in the occupied territory. Having taken this action, Pakistan should negotiate with India a pacific settlement of the Kashmir dispute with or without international mediation from a big power guaranteeing the full implementation of the peace accord. By taking away the special status of Kashmir under duress, India has returned the delegated people’s power from the abrogated Assembly back to the Kashmiri people to decide their future without a plebiscite outside of India.

On 5 August 2019, India surprised its citizens and the outside world by revoking the autonomous status of the Indian Held Jammu & Kashmir (IHK) provided under Article 370 of the Indian Constitution, and by enacting a new Jammu and Kashmir (J&K) Reorganisation Bill to make the disputed State two separate territories. Under the new arrangement, J&K will become a part of the Indian Union and have a Legislative Assembly, and Ladakh will become a part of the Indian Union without a Legislature. Prior to presenting the Bill in Rajya Sabha on 5 August 2019, which was carried by a majority vote of 125, with 61 against and 1 abstention, India’s Home Minister Amit Shah said that the decision on Ladakh was taken in view of the “long pending demand of the people of Ladakh to give them the status of a Union Territory to enable them to realise their aspirations”. For J&K he used a different yardstick, promising that peace will return to J&K in a short period (five years), without answering the criticism from the opposition Indian National Congress that the ruling BJP did not hold any consultation with the political parties, as well as the Kashmiri leadership, most of whom are locked up in jails or are under house arrest.

But the Indian action on Kashmir is no surprise to India watchers. Having failed in their attempt to silence the surge in the indigenous struggle for independence by a heavy armed presence, and causing almost every household in the Valley to bury their young dead lads chanting Pakistan Zindabad and Kashmir Baneyga Pakistan, it was not unforeseen that the new BJP government would carryout its long-standing pledge to formalise Kashmir’s merger in the Union by repealing its constitutionally protected special status and opening the disputed territory to Indians from the rest of the Union to buy property and businesses and change the demographics of IHK and ‘Indianise’ the disputed Muslim-majority Pro-Pakistan State according to the BJP text book of Hindutva.

It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations.

It is also not surprising that the majority of Kashmiris feel cheated for the second time in their national struggle to free themselves form Indian occupation in three successive generations since the messy partition of India overseen by the British in 1947. Through its latest action, the Modi government has removed the fig leaf of J&K as a disputed territory and made the people of J&K victims of tyranny of majority by using the heavy hand of the Indian Union’s democratic institutions comprising the Executive and Parliament. There is little doubt that the 5 August action taken by India in regard to IHK will be reversible even if a constitutional petition is filed at the Indian Supreme Court against today’s vote. As stated in Rajya Sabha today, the government would take the position that it will hold fresh elections in J&K and ask the new Legislative Assembly to sign a fresh instrument of accession by J&K to join the Indian Union.

With a curfew fully in place in the IHK, its past and current Muslim leadership under arrest, its democratically elected Legislative Assembly suspended and the people of Kashmir having no human rights and no say in the new reorganisation their State, the Indian Union’s theatre of the absurd in the Parliament lacks political legitimacy and is short of civilised democratic norms. However, it is a historic motion because it formally divides the Muslim-majority J&K from the Buddhist-majority Ladakh.

India could, in the future, find it easy to negotiate with the Kashmiri leadership a political settlement, which could be acceptable to them, as well as to Pakistan while keeping Ladakh out of the equation.

This development also gives Pakistan an urgent one-time opportunity to rethink its response and strengthen its position toward negotiating a final deal on J&K with India in the future.

What gives Pakistan and Kashmir a permanent advantage over India is the undeniable fact, proven by the last seventy years that until Kashmiris and Pakistan agree on a peace deal, there can be no peace in the Sub-continent, which India badly needs to keep its economic development at par with the other emerging economies in the G15.

Having binned its own political arrangement put in place to do away with the plebiscite, which supposedly placed the voice of the people of IHK in the hands of an elected Legislative Assembly deriving its so called ‘legitimacy’ from Article 370, the political power delegated by the people of Kashmir to their representatives has returned to them. They are now free to express their political will outside the Indian political process and demand independence from India and express their desire to join Pakistan from any platform. A Congress of Indian Kashmiri expatriates held in any European capital such as London or Norway, or even in the US can provide a substitute for their lost Assembly. They can invite IHK’s Kashmiri leaders online or through messages sent by them to pass a resolution condemning the failure of the previous governments in India to fulfil Jawaharlal Nehru’s commitment for holding a UN-supervised plebiscite in Kashmir; and they can reject the action of the present Indian government for annulling Kashmir’s special status and its reorganisation through a parliamentary act on 5 August 2019. Through a simple majority resolution such as the historic 23 March resolution of Pakistan, the Indian Kashmiris can declare that as a substitute for the plebiscite, they have now decided that the J&K territory in the IHK is now a part of Pakistan.

The Azad Kashmir Assembly can request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.

Responding to this resolution from the Congress of the people of IHK, the Legislative Assembly of Azad Kashmir on the Pakistani side of the Line of Control can convene an emergency session and pass a resolution expressing their solidarity with the people of IHK and take a positive view of the resolution passed in their Congress. The Azad Kashmir Assembly can further request the State of Pakistan to grant the people of Azad Kashmir, as well as the Kashmiri people of IHK the status of a separate and full Province in Pakistan with all the rights, as enjoyed by the constituent parts of the Federation of Pakistan.

Article 257 of the Constitution of Pakistan states that “When the people of the State of Jammu and Kashmir decide to accede to Pakistan, the relationship between Pakistan and the State shall be determined in accordance with the wishes of the people of that State”. In pursuance of this provision, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session to consider the request of the Azad Kashmir Assembly to make Azad Kashmir as well as IH Kashmir a new province in the Federation.

In pursuant of Article 257 of the Pakistan Constitution and to respond to the resolution of the Azad Kashmir Assembly expressing the combined wish of the people of Kashmir on both sides of the LOC to accede to Pakistan, the Senate and National Assembly of Pakistan should meet in an extraordinary joint session and declare that the whole of Kashmir on both sides of the LOC, as far as its territorial limits extend, is a new province in the Federation of Pakistan. Article 1 of the Constitution should also be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.

Pakistan Constitution should be accordingly amended by two-third majority and a provision should be added that Pakistan’s borders shall comprise, in addition to its present international boundaries, the area of the disputed Indian Held J&K as shown on the present world map, whenever it becomes free from Indian occupation.

On the face of it, to some people it may appear that the suggestion to recognise Azad Kashmir as the 6th province of Pakistan is walking right into the BJP strategy where India would probably want Pakistan to do the same with Azad Kashmir and settle the long standing Kashmir dispute on the basis of the status quo on the Line of Actual Control. It is possible that when President Trump offered US mediation on Kashmir to Prime Minister Imran Khan last month, he was referring to settlement of the Kashmir dispute along the LOC. However, in the step-wise action plan outlined in this paper, which I call the Sharfuddin Formula, Pakistan will be officially claiming the entire Kashmir, both Azad Kashmir as well as the IHK as the territory of Pakistan without having to go to war with India. A constitutional claim by Pakistan would not have been possible in the absence of current Indian provocation and would have elicited serious retaliation by India. But ironically, the BJP government has presented Pakistan this opportunity on a platter. Having claimed the entire territory of Kashmir as the 6th Province of the Federation in the country’s Constitution through a constitutional amendment, Pakistan can go about doing its business as before but when in the future Pakistan’s economy and defence is strong, it can always get back to India with the dictating position that India’s occupation is not acceptable in Pakistani territory.

Pakistan’s response to India’s action along the above lines, also carries several tactical advantages:

1) It will give Pakistan a new boundary which will be extended beyond the LOC to include the entire territory of IH J&K leaving Ladakh to India. Even though Jammu may have Hindu majority, keeping it together with Kashmir Valley is important for negotiations because the two regions are intrinsically linked with each other.

2) By breaking the IHK into two administrative territories India has already acquiesced in the existence of a Muslim-majority Kashmir and a Buddhist-majority Ladakh. It will be easy for Pakistan to press its case for getting Kashmir back from India instead of playing the role of an interested party that supports the Kashmiri cause politically and morally.

3) The popular resistance in IH Kashmir will find a new ray hope under the present most depressing circumstances where some people are seeing this act by the Modi government as the last nail in the coffin of resistance. By declaring the entire IH J&K as part of Pakistan constitutionally and politically, the indigenous resistance will grow stronger and ruin the chances of India hoping to gulp it down as it did other princely states in the past, notably Hyderabad. It will also give encouragement to those pessimists in Pakistan who are saying it is too late to do anything because they think that India’s ‘master stroke’ is so good, it cannot elicit a befitting counter-response.

4) The people of Kashmir will have their representatives sit in Pakistan’s Executive and Parliament and take part in the political process as Pakistani citizens with equal rights and responsibilities. Pakistan’s foreign and security policy will include their voice and provide a fresh blood in the direction of the country in settling this long-standing dispute with India on its terms.

5) Outside powers, including Pakistan’s friends do not fully understand the administrative arrangements of Azad Kashmir. The voice of Azad Kashmir gets muted abroad when Pakistani diplomats representing Pakistan speak for Azad Kashmir. Azad Kashmir’s President and Ministers are not given meeting appointments because of the complex rules of international recognition of countries. The new province will make greater impact on third countries interested in international mediation or supporting bilateral negotiations for peace in the Subcontinent.

6) It will unite different political parties and interest groups on one cause and bring a huge improvement in the current governance structures by adding focus and purpose in the national and provincial agendas.

It is worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.

The time to act on a solid long term counter strategy is now. I am sure Pakistani policy makers must have thought of this Indian development long before it was materialised by the BJP government on 5 August 2019. I am also sure that a proper response and contingency plan exists as to how the government should move next in rolling out its counter strategy. But it is also worth reviewing the contingency plan and response in the light of the fresh opportunity this action has provided Pakistan and given it an opening, which was closed to it in the last 70 years for reasons which have now been overtaken by events.

London 5 August 2019

*Mr Syed Sharfuddin is a former diplomat and a former Special Adviser for Asia in the Political Affairs Division of Commonwealth Secretariat London (2000-2006).

By Syed Sharfuddin

In May 2017, India filed an application against Pakistan at the International Court of Justice (ICJ) in the Hague, maintaining that Pakistan had breached its obligations under the Vienna Convention on Consular Relations of 1963 (the Convention) to provide a fair trial to its national, Kulbhushan Sudhir Jadhav, who was arrested in Pakistan in March 2016 on charges of espionage and was awarded death sentence by a Pakistani military court in April 2017. 1

The ICJ admitted India’s application under Article 1 of the Optional Protocol to the Convention concerning Compulsory Settlement of Disputes to which both India and Pakistan are signatories. In admitting the Indian application, the ICJ dismissed the objections of Pakistan to India’s application citing abuse of process, abuse of rights and unlawful conduct by India.

The ICJ jurisdiction was limited to “providing reparation only for the injury caused by the internationally wrongful act of Pakistan that fell within the Court’s jurisdiction, namely Pakistan’s breach of obligations under Article 36 of the Convention and not of the International Covenant on Civil and Political Rights”. 2

In admitting India’s application for a hearing, the ICJ disregarded a well established rule of customary international law that normally a complaint of a State against another State regarding its national is not considered until the accused has exhausted the legal remedies available under the law of that State. In this case, ICJ did not ask India to wait for the appellate remedy available to the Jadhav to be fully exhausted in Pakistan.

The 149 paragraph verdict, given by a panel of 16 distinguished judges, including the sole dissenting ad-hoc judge from Pakistan, Justice (Retd) Tasadduq Hussain Jillani, has been claimed by both State parties as vindication of their respective legal positions.

The ICJ accepted India’s assertion that Pakistan was in breach of Article 36 of the Convention and asked Pakistan for the continued stay of the sentence pending finalisation of the proceedings in the light of the ICJ ruling.

The ICJ did not accept India’s position that the reparation of the injury should annul the decision of the Pakistani military court and ask Pakistan to free Jadhav.

The ICJ accepted Pakistan’s submission that the appropriate remedy in this case was the effective review and reconsideration of the conviction and sentence of the accused .3

The ICJ did not accept Pakistan’s position that Article 36 did not apply to persons arrested on charges of espionage 4.

Legal experts agree that the ICJ could go only as far as it has gone; that the Court had no mandate to annul the decision of the military court, within the scope of its jurisdiction, having acknowledged that Pakistan and its criminal justice system were fully compliant with due process. 5

Ruling
The full summary of the ICJ ruling announced on 17 July 2019 is contained in paragraph 149 of the decision. 6

The ICJ found that “Pakistan acted in breach of its obligations under Article 36 of the Convention: firstly, by not informing Mr. Kulbhushan Jadhav of his rights; secondly, by not informing India, without delay, of the arrest and detention of Mr. Jadhav; and thirdly, by denying access to Mr. Jadhav by the consular officers of India, contrary to their right, inter alia, to arrange for his legal representation”.

The ICJ acknowledged that Pakistan notified India on 25 March 2016 of the arrest and detention of Mr. Jadhav, as required by Article 36, paragraph 1B, of the Convention. 7

However, the fact that the notification was made some three weeks after the arrest, constituted a breach of the obligation to inform “without delay”, as required by Article 36, paragraph 1B of the Convention. 8

The ICJ held that Pakistan’s breach of paragraphs1A &1C of Article 36 of the Convention constituted “internationally wrongful acts of a continuing character”. 9. Pakistan was therefore “under an obligation to cease those acts and to comply fully with its obligations under Article 36 of the Convention. Consequently, Pakistan must inform Mr. Jadhav without further delay of his rights under Article 36, paragraph 1B, and allow Indian consular officers to have access to him and to arrange for his legal representation, as provided by Article 36, paragraphs 1A and 1C.”

The ICJ ruled that “the appropriate remedy in this case for Pakistan” was to undertake an “effective review and reconsideration of the conviction and sentence of Mr. Jadhav” by giving this process “full weight” to the “effect of the violation of the rights set forth in Article 36 paragraph 1 of the Convention, and guarantee that the violation and the possible prejudice caused by the violation are fully examined”.

The ICJ took full cognizance of the fact that the Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available”.

The ICJ left the choice of ways to Pakistan for performing its obligation to provide effective review and reconsideration of the case but it noted that “freedom in the choice of means is not without qualification”, which is that the “obligation to provide effective review and reconsideration is an obligation of result, which must be performed unconditionally”. Therefore, “the violation of the rights set forth in Article 36, paragraph 1, of the Convention, and its implications for the principles of a fair trial, should be fully examined and properly addressed; that Pakistan take all measures to provide for effective review and reconsideration, including, if necessary, by enacting appropriate legislation; and [observe] a continued stay of execution which is an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Jadhav” 10.

Observation 1
In May 2017 the ICJ admitted the application of India under Compulsory Settlement of Disputes without allowing the appellate process in Pakistan to be completed.

Yet two years later, in its ruling on 17 July 2019 the ICJ took cognizance of the fact that the “Constitution of Pakistan guarantees, as a fundamental right, the right to a fair trial; that the right to a fair trial is “absolute” and “cannot be taken away”; and that all trials are conducted accordingly and, if not, “the process of judicial review is always available” to persons under consideration 11.

Observation 2
In its July 2019 ruling, the ICJ said that Pakistan consistently maintained that Article 36 did not apply to Jadhav who was not just an Indian national but also a spy. The ICJ therefore inferred from this position that under Article 36:1A, Pakistan breached its obligation to inform Mr. Jadhav of his rights under that provision”. 12

On the other hand, under Article 36:1B, the ICJ did not infer that since the concerned Indian national was doing espionage on behalf of his government, his arrest and detention in Pakistan (which was not his normal place of residence on duty) should have come to the knowledge of India on the same day on 25 March 2016 when his phone went unanswered and messages stopped coming, thereby invalidating the obligation of the receiving State to inform the sending State of the arrest of its national without delay.

Observation 3
The ICJ further stated that it will interpret the 1963 Convention according to customary rules of treaty interpretation, as reflected in Articles 31 & 32 of the 1969 Vienna Convention on the Law of the Treaties in order to remove any ambiguity or obscurity in the 1963 Convention. India has not signed the 1969 Convention. Pakistan has signed the 1969 Convention but not ratified it.

It is interesting that while the Court declined to consider Pakistan’s plea for declining India’s request for admissibility of the case on the basis of customary law, the ICJ did not mind recourse to customary law in the interpretation of the 1963 Convention.

Observation 4
In considering the provisions of the bilateral agreement of 2008 between India and Pakistan, which covers “cases of arrest, detention or sentence made on political or security grounds” and commits each side to “examine the case on its merits” 13, the ICJ noted that it does not take away the right of the accused to have consular access under Article 36 of the Convention.

The ICJ accepted that under Article 73 paragraph 2 of the Convention, the 2008 Agreement is consistent with the Convention, as it confirms, supplements, extends or amplifies the provisions of the Convention and regulates matters not covered by the Convention. Yet, the ICJ did not direct the two State parties to resolve this matter in accordance with the bilateral Agreement of 2008 15.

It may be recalled that since 1972, India has consistently maintained that the Kashmir dispute should be resolved between India and Pakistan bilaterally in accordance with the provisions of the Simla Agreement between the two countries. The two State parties, the UN and the international community have supported the bilateral option, but never said that the Simla Agreement should be disregarded and the dispute should be resolved on the basis of the UN Resolutions on Kashmir calling on India to hold a plebiscite in the disputed territory.

Observation 5
The ICJ noted that if the signatory State parties to the 2008 Agreement “had intended to restrict in some way the rights guaranteed by Article 36, one would expect such an intention to be unequivocally reflected in the provisions of the Agreement.

The ICJ ruled that Article 36 of the Convention does not exclude from its scope persons suspected of espionage, despite the clear omission of espionage in the Convention, as opposed to a bilateral agreement between two sovereign countries which explicitly provides a framework for arrest, detention or sentence made on political or security grounds and calls for consideration of cases falling under this provision on merit.

Observation 6
In regard to the breach of Article 36 paragraphs A & C of the Convention, 14, the ICJ did not accept Pakistan’s submission that Pakistan had asked for vital information such as confirming the passport details and activities of the accused to verify his nationality and profession, which were not provided by India.

In rejecting the notion of any conditionality attached to right of the accused for consular access and the right of the State of the accused to arrange legal representation for him, as provided under Article 36:1A, the ICJ did not take into consideration the facts that the accused was an employee of an Indian spy agency and his alleged terrorist activities in Pakistan had made India complicit in the crime and created a direct conflict of interest, not foreseen in the Article at the time of the drafting of the Convention. The ruling also did not mention that Pakistan partially implemented Article 36 paragraph 1A by allowing the family of the accused to meet him in person.

As for the intent of the drafters of the Convention to include espionage in Article 36, it is correct that espionage was a well known state instrument when the Convention was negotiated, but it is also correct that state-sponsored terrorism and deploying spies as terrorists’ handlers in enemy states had not been invented.

Observation 7
In considering India’s complaint, the ICJ focused its attention on Article 36 of the Convention. It did not take into consideration Article 55 of the Convention, which obliges the officers of the sending state to respect the laws and regulations of the receiving state. Although the Article is about immunities and privileges of the consular officers of the sending State, it implicates all Indian consular officers posted in Pakistan as an extension of the Indian state, which appointed Kulbhushan Jadhav to carry out espionage activities in Pakistan, and also issued him a genuine Indian passport under a false alias.

Conclusion
The ICJ ruling of 17 July 2008 adds the following to the international case law:

1.The ACJ can disregard the established principle of customary international law which states that local remedies be fully exhausted before a State brings a case to the ICJ for consideration.

2.Irrespective of the provision in Article 36 paragraph 1B which states that “if he [the accused] so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State” about his arrest, it is now established by ICJ that the request of the accused, even if not expressed, is always implied under paragraph 1B. 16

3.A State arresting a foreign national is obliged to unconditionally observe Article 36 paragraphs 1A, 1B and 1C of Vienna Convention on Consular Relations (1963) regardless of the nature of the accusation, including terrorism and espionage.

Suggestions for Pakistan

While giving full effect to the detailed ruling of the ICJ in its judicial process for the Jadhav case, Pakistan should consider taking the following additional steps with the relevant national and international bodies:

1.Propose to the UN to convene a comprehensive review of the 1963 Convention and its Optional Protocol in the light of the changed nature of international relations, which include, inter alia, misuse of consular premises by sending States to undertake anti-state activities in the receiving State; State-sponsored terrorism through contracted intelligence officers and civilians posing as journalists, businessmen and INGO personnel; spread of terrorism and hatred though social media; inter-state cyber wars; and, cross border illegal financial transactions.

2.Pakistan can also, should it so wish, submit a reservation or declaration to the 1963 Convention stating that it will not consider Article 63:1B binding on the State in instances of foreign nationals arrested for proven terrorist activities or espionage, pending completion of its internal investigation. Such as resolution or declaration should first be passed by the Parliament.

Notes:
1. ICJ ruling. Paragraph 25. Full Text: The remedies requested by India in its final submissions have already been set out (see paragraph 19 above). In summary, India requests the Court to adjudge and declare that Pakistan acted in breach of Article 36 of the Vienna Convention on Consular Relations. Pursuant to the foregoing, India asks the Court to declare that the sentence of Pakistan’s military court is violative of international law and the provisions of the Vienna Convention, and that India is entitled to restitutio in integrum. It also requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence or conviction, to direct Pakistan to release Mr. Jadhav and to facilitate his safe passage to India. In the alternative, and if the Court were to find that Mr. Jadhav is not to be released, India requests the Court to annul the decision of the military court and restrain Pakistan from giving effect to the sentence awarded by that court. In the further alternative, India asks the Court to direct Pakistan to take steps to annul the decision of the military court. In either event, it requests the Court to direct a trial under ordinary law before civilian courts, after excluding Mr. Jadhav’s confession and in strict conformity with the provisions of the International Covenant on Civil and Political Rights, with full consular access and with a right for India to arrange for Mr. Jadhav’s legal representation.
2. Ibid. Paragraph 135
3. Ibid. Paragraph 130
4. Ibid. Paragraph 147
5. Ibid. Paragraphs 139 & 145
6. Ibid. Full Text of Paragraph 149. The Court, (1) Unanimously, Finds that it has jurisdiction, on the basis of Article I of the Optional Protocol concerning the Compulsory Settlement of Disputes to the Vienna Convention on Consular Relations of 24 April 1963, to entertain the Application filed by the Republic of India on 8 May 2017; (2) By fifteen votes to one [and in all other subsequent paragraphs], Rejects the objections by the Islamic Republic of Pakistan to the admissibility of the Application of the Republic of India and finds that the Application of the Republic of India is admissible; (3) Finds that, by not informing Mr. Kulbhushan Sudhir Jadhav without delay of his rights under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations, the Islamic Republic of Pakistan breached the obligations incumbent upon it under that provision; (4) Finds that, by not notifying the appropriate consular post of the Republic of India in the Islamic Republic of Pakistan without delay of the detention of Mr. Kulbhushan Sudhir Jadhav and thereby depriving the Republic of India of the right to render the assistance provided for by the Vienna Convention to the individual concerned, the Islamic Republic of Pakistan breached the obligations incumbent upon it under Article 36, paragraph 1 (b), of the Vienna Convention on Consular Relations; (5) Finds that the Islamic Republic of Pakistan deprived the Republic of India of the right to communicate with and have access to Mr. Kulbhushan Sudhir Jadhav, to visit him in detention and to arrange for his legal representation, and thereby breached the obligations incumbent upon it under Article 36, paragraph 1 (a) and (c), of the Vienna Convention on Consular Relations; (6) Finds that the Islamic Republic of Pakistan is under an obligation to inform Mr. Kulbhushan Sudhir Jadhav without further delay of his rights and to provide Indian consular officers access to him in accordance with Article 36 of the Vienna Convention on Consular Relations; (7) Finds that the appropriate reparation in this case consists in the obligation of the Islamic Republic of Pakistan to provide, by the means of its own choosing, effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav, so as to ensure that full weight is given to the effect of the violation of the rights set forth in Article 36 of the Convention, taking account of paragraphs 139, 145 and 146 of this Judgment; (8) Declares that a continued stay of execution constitutes an indispensable condition for the effective review and reconsideration of the conviction and sentence of Mr. Kulbhushan Sudhir Jadhav.
7. Ibid. Paragraph 111
8. Ibid. Paragraph 113
9. Ibid. Paragraph 134
10.Ibid. Paragraphs 141 & 149
11. Ibid. Paragraph 145
12. Ibid. Paragraph 102
13. Point vi of the Agreement on consular access between the Government of the Islamic Republic of Pakistan and the Government of the Republic of India. Islamabad, 21 May 2008.
https://treaties.un.org/doc/Publication/UNTS/No%20Volume/54471/Part/I-54471-08000002804b7dde.pdf
14. ICJ ruling. Paragraph 96
15. Text of Article 36: Communication and contact with nationals of the sending State.
1.With a view to facilitating the exercise of consular functions relating to nationals of the sending State:
(a) consular officers shall be free to communicate with nationals of the sending State and to have access to them. Nationals of the sending State shall have the same freedom with respect to communication with and access to consular officers of the sending State;
(b) if he so requests, the competent authorities of the receiving State shall, without delay, inform the consular post of the sending State if, within its consular district, a national of that State is arrested or committed to prison or to custody pending trial or is detained in any other manner. Any communication addressed to the consular post by the person arrested, in prison, custody or detention shall be forwarded by the said authorities without delay. The said authorities shall inform the person concerned without delay of his rights under this subparagraph;
(c) consular officers shall have the right to visit a national of the sending State who is in prison, custody or detention, to converse and correspond with him and to arrange for his legal representation. They shall also have the right to visit any national of the sending State who is in prison, custody or detention in their district in pursuance of a judgement. Nevertheless, consular officers shall refrain from taking action on behalf of a national who is in prison, custody or detention if he expressly opposes such action.
2.The rights referred to in paragraph 1 of this article shall be exercised in conformity with the laws and regulations of the receiving State, subject to the proviso, however, that the said laws and regulations must enable full effect to be given to the purposes for which the rights accorded under this article are intended.
16. Ibid. Paragraph110

London: 18 July 2019

Syed Sharfuddin

On 14 October 2018 over 5 million voters will be going to the polls again to elect public representatives for the vacant 35 seats in the federal National Assembly and Provincial Assemblies of Pakistan. According to Pakistan Election Commission, over 300 candidates are contesting in the forthcoming bye-elections. Only last July, these seats were contested in the 2018 Pakistan General Election and voters freely exercised their right to vote. However, this exercise went waste because the candidates who won, had also won in other constituencies and decided to opt out of these constituencies resulting in fresh vacant seats.
The revised 2017 Electoral Law and 2017 Election Rules which allow citizens to contest elections from multiple constituencies need to be reviewed by the Parliament and the Election Commission of Pakistan in the light of good international practice. In a developing country like Pakistan, this second exercise is a waste of scare economic resources and a blatant abuse of democracy. Multiple candidacies mean depriving other candidates of their fair chance to get elected in the primary ballot in the first place at the time of the General Election. We all know that the incumbency factor plays a major role in the by-elections which are not held under a neutral caretaker administration which is mandated by the constitution for the conduct of a General Election.
The argument in favour of multiple-constituency candidacies is undestandable in the context proportionality. It is meant to protect the right of individual candidates to contest elections within the stipulated timeframe of the Election Commission’s published schedule of elections. If any candidate gets disqualified by an RO in a district for some reason which is disputed before an electoral tribunal, or if elections are postponed in a constituency for some reason where s/he is a candidate, s/he can still contest from another constituency where s/he is a double candidate. But at the last General Election in July 2018 there were popular politicians contesting from not just two but as many as four constituencies in order to “protect” their chances of becoming MNA or MPA. This is the height of enthusiasm you might say. At the end of the day, it was this devouring ‘yahan bhi woh, wahan bhi woh’ tendency which resulted in 35 fresh vacancies for the 14 October by-elections, enough to cause an upset in a delicately balanced Parliament if the ruling party and/or its allied parties do not win most seats.
The arrest of the opposition leader in the current circumstances immediately before the by-elections lends weight to the outcry of the opposition parties that for the second time round, they are being victimised on the eve of an important poll.
It is a matter not just for the Parliament to reflect but also for the ECP which brings good international practice in the management of elections. The custodians of democracy individually and institutionally must try to improve the electoral system irrespective of their personal preferences for systems, parties and candidates.
Any comments on the reform of multiple constituency nominations system are welcome.

13 October 2018

By Syed Sharfuddin

It seems there is always more credit given to military establishment by the Pakistani public than it actually deserves. Whether this credit is borne out of a deep embedded fear of an overwhelming brutal force tapping their phone calls and scanning their e-conversations, or it is an expression of the public respect for a patriotic peace-keeping institution depends on who one talks to and where the interlocutor comes from. However, most of the time the credit is not positive but almost invariably critical when civil society and media see it impinging upon civil liberties and constitutional freedoms taken for granted in a democratic society.

Whether it is the fall of a single tree or bulldozing an entire forest, the military establishment is an easy scapegoat to name as the mastermind behind such actions. The ‘love’ of military establishment is so deep in the hearts of people that they have invented many nicknames for it such as Aabpara, Lalkurti, Establishment, Agriculture Department, Aliens or Militablishment. Everyone knows where it resides but no one wants to be on record to identify it publicly. Even those who claim that they have received intimidating phone calls can’t say for sure if the caller was real or an imposter. Missing persons who are fortunate to come back after receiving the hospitality of the establishment say they cannot be certain about their abductors.

While it is true that the military establishment has always taken an interest in trimming the trees or even causing the fall of certain leaves and fruits before they ripen and fall naturally in the autumn winds, it is not true that this machine is so powerful as to manage the entire echo system, bring storms and infest the forest with fungus. On the contrary it may be the making of its nemesis, the powerful land or business or peasant controlling politicians and bureaucrats working in league with the many private mafias at work in society to serve vested interests.

At this general election, I was hoping to see a perfect outcome of the systematic pre-poll rigging reported by human rights and civil society organisations and curbs on media freedoms which forced certain media houses to exercise self-censorship in covering the narrative of the pariah political party PML(N). I had heard that the military establishment had decided to bury both PML(N) and PPP and instead bring PTI as the majority party in parliament led by its favourite lad Imran Khan. I was told that the presence of army security inside police stations and the unexpected delay in the ECP’s much acclaimed RTS was designed to rig the election in the dark hours of 25 July to make sure that things went according to the establishment’s plan. But the results, when these were eventually announced, disappointed me as much as they surprised everyone.

It turned out that the military establishment was quite inefficient in translating its plans into reality. PTI did not get outright majority in NA; none of the independent candidates proudly waving Jeep as their electoral symbol during the campaign made it to NA; the blue eyed boy of the military establishment, Chaudhry Nisar lost three of four seats contested by him, winning only one PA seat; and the hand-fed parties of the establishment PSP and TLP never made it to the NA. The older rightist parties which always support he establishment also did poorly in the election, despite forming an alliance to benefit from seat adjustments.

The credit given to military establishment by its critics for everything that goes wrong in politics is not new. It is said that ever since the martial law of Iskandar Mirza, military establishment used the judiciary to advance its agenda and legitimise its influence in the public. May be it was so and the judges who thought that by legitimising coups they could keep at least one civilian institution, i.e. judiciary free from military takeover, were wrong. Devotees who regard military establishment as their Nakhuda say that even the judges’ movement against a uniform wearing President Musharraf in 2007 was sponsored by the military establishment because he wanted to settle the Kashmir dispute with India which the latter did not approve of. The current judicial activism of 2018 is also credited to military establishment instead of the CJ who has gone out of his way by taking ‘suo moto’ actions on administrative matters only to stress that the judiciary as an independent institution, not open to any influence from any outside agencies.
 
Assuming that the military establishment is all powerful and always correct, then it is hard to understand why the 2018 election did not result in an outcome which the military establishment wanted; why security lapses took place which enabled terrorists to carry out three suicide bombings during the election campaign; why Mullas became radicalised and decided to field their own candidates; and why PML(N) and PPP are still the majority parties in Punjab and Sindh after all the punctures and engineering purported to have been applied in last month’s election to push them back against the wall.

Many will answer that this is how military establishment wanted it and this is what it got in the form of a fragile coalition government so that it could still play the cards behind the scenes. But this is like saying whatever extraordinary happens in the world is sponsored by the CIA. True, Pakistan has had military governments which stymied the growth of democracy and did not allow democratic institutions to mature on their own. True, money was spent freely in buying loyalties of candidates in past elections and form GHQ-approved governments. But after 2008, democracy was supposed to have taken roots in Pakistan and whatever went wrong was supposed to be blamed on politicians instead of the military establishment, even if some elements tried to drag it into the fray. Even after two civilian governments which completed their term successfully, if the politicians are unable to take responsibility for their actions then the change will remain elusive even if the new boy on the block force implements it in the honeymoon period of his government which is always the best time to show that as a good governor you mean what you say.

One can pick even bigger questions from the past to find out the truth about the powerful establishment that Pakistanis never tire of dreading. Why this powerful establishment lost Bangladesh, the Kargil war and the strategic depth in Afghanistan? Why it did not know about the presence of UBL in its territory? Why the marine helicopters landed in Pakistani territory to take UBL away and its ADS did not activate in real time?
 
My view is different from that of the sun worshippers. The military establishment is a terrestrial institution, not an alien force to turn things around with a magical sceptre. It consists of the same people and same families which produce politicians, judges and civil servants. It has the same limitations and weaknesses as the other institutions of the state. It is human and liable to sometimes think the moon and stars but deliver only the earth. 

The sooner Pakistani people realise this the easier it will be for them to start thinking what is wrong in their policies and processes instead of passing the buck to the military establishment and say they must answer all the questions because they are the do all and be all of Pakistan. 

If you disagree please rest assured that I am open to correction. 

3 August 2018

By Syed Sharfuddin

Pakistan completed its eleventh general election last month amidst serious security concerns, questions about the role of the military establishment in election and reported restrictions on certain media houses and journalists to prevent them from discussing sensitive issues. The elections were observed by 19000 volunteers from Fair and Free Election Network (FAFEN), a domestic citizen observer group, the European Union Election Observation Mission (EUEOM) and the Commonwealth Observer Group (COG).

The conclusion of all three observer groups was that on polling day, voters expressed their will freely with no complaints received from any stakeholder about the military interfering in the voting process. They also concluded that in the pre-poll period, political developments helped Pakistan Tehreek Insaf (PTI) increase its vote bank at the cost of Pakistan Muslim League-Nawaz (PML(N) and to some extent, Pakistan Peoples’ Party (PPP). The post-poll process is yet to be wrapped up as preliminary results have been contested and the Election Commission of Pakistan (ECP) has ordered recount in over 70 constituencies for both the National Assembly and Provincial Assemblies’ seats.

While the outcry of pre-poll rigging had not faded from the minds of the supporters of PML(N) and PPP, which secured second and third places respectively in the National Assembly in the 2018 general election, the long delay in the announcement of results immediately after the poll, contrary to the claims of the ECP to announce results starting 2:00 am took away the gloss from what was otherwise a peaceful and orderly polling day, except for one terrorist explosion near a polling station in Quetta which claimed the lives of 31 people.

As the midnight of 25 July 2018 approached, questions were raised about the failure of the ECP’s Rapid Transmission System (TRS) as to whether this was simply the crash of the Android App developed by the ECP for the secure online communication of the result-count of each polling station on the prescribed Form 45, or was it the real game changer in rigging which overturned the will of the people in the early hours of 26 July 2018 to produce fixed results favouring PTI.

The ECP had aimed to beat private TV channels by announcing early results instead of allowing the latter to guess the results and cause a controversy about the ECP’s counting and tabulation process. The ECP had also gone a step further to avoid criticism from losing candidates and parties that it was an ROs election, as was alleged by PTI in 2013. At this election, the ECP had recruited returning and district returning officers (ROs and DROs) from the judiciary to ensure they did not come under political pressure from the local administration or political parties to alter the results of the poll during compilation. Yet, on the day itself the ECP’s RTS App miserably failed. Its website was also woefully lacking in information about unofficial results ahead of private TV channels.

In their preliminary report released on 27 July, the European Observers pointed out that the advances made in the legal framework of elections and the measures introduced for increased women’s participation in the election had been overshadowed by the timing of criminal convictions of key politicians on account of corruption; contempt of court cases against certain candidates; and terrorism charges against the workers of one political party. The EUEOM claimed that the level-playing field for campaign lacked in equality of opportunity.

In its interim statement, the Commonwealth Observers noted that Pakistan’s 2018 general election was conducted under a substantially reformed and improved legal framework but some stakeholders questioned the impartiality of the military and judiciary and cited the timing of court cases against certain political leaders and candidates as an example on uneven playing field. The COG also noted that the media and civil society representatives they met had mentioned that editors and reporters received threats and were prevented from covering certain issues, such as the rights of minorities, performance of judiciary and the role of state institutions. Some journalists and bloggers were reported to have been kidnapped, harassed or intimidated for their critical coverage. These incidents reportedly resulted in increased self-censorship.

The 2018 general election should be seen in the context of Pakistan’s long transition to democracy. This was the second time the general election was held under a civilian administration. It was also an election which had the war on terror still waging in the background in which Pakistan lost 76,000 people, of whom 68 percent were civilians and 32 percent from the armed forces. In the weeks prior to election, three terrorist attacks in Khyber Pakhtoonkhwa and Balochistan provinces claimed the lives of 170 people including 2 provincial assembly candidates.

There is not a single election in Pakistan where the level-playing field was not disputed. The 2008 general election was organised under a caretaker government but General Musharraf held both the office of President and Chief of Army Staff. In that election, even if the PPP had not benefited from the sympathy vote on the eve of Benazir Bhutto’s assassination, the only party which suited General Musharraf’s vision of enlightened moderation was PPP. The 2013 general election was held under a civilian administration but PTI called it an ROs election alleging that it was fixed by the army and the judiciary in favour of PML(N). The same accusations are now being traded by PML(N), PPP, MMA and MQM, all losing parties against PTI in the 2018 election results.

A walk through Pakistan’s political landscape two years prior to the 2018 general election shows how PML(N) dominated the political field in the country. In the 342-seat National Assembly, PML(N) held 188 seats, followed by PPP (46 seats), PTI (23 seats), JUI (13 seats) and Independents (9 seats). The remaining parties represented in the 2013-2018 Parliament held five or less seats.

It was not just the Parliamentary majority PML(N) enjoyed in the centre. PML(N) also formed governments in Pakistan’s largest province Punjab and in Balochistan, the latter with the help of local parties. The state institutions, such as the National Accountability Bureau (NAB), Federal Investigation Agency (FIA), the Intelligence Bureau (IB), other regulatory authorities such as PEMRA, the Parliament and the Judiciary were under the control of the ruling party and unable to address the charges of corruption raised by the opposition against PML(N) leader Nawaz Sharif and his family.

Had this situation continued, there would have been no level playing field for the 2018 general election, as PML(N) would be all powerful to use the same state institutions against its opponents. But this may be a hypothetical question because what was supposed to be a realignment of institutional independence in relation to the ruling PML(N) eventually ended up clipping its wings so close to skin that it became the underdog in the weeks preceding the election, with its leader imprisoned for graft and some of its top leaders disqualified from contesting the election on account of aiding and abetting corruption or contempt of court. The fall of PML(N) from grace was not natural but induced and “all the king’s horses and all the king’s men couldn’t put ‘Humpty’ together again”.

As early as 2016, when Nawaz Sharif realised that the sceptre of Panama Papers was not going to go away, he made a clever move to play the ‘Establishment’ card, which was politically designed to restore his public image and undermine the military which he never trusted after the 1999 military coup. His two interviews to a local journalist in the daily Dawn in October 2016, and again in May 2018, were designed to nail the military as the ‘bad guys’. Although in the long run this proved unhelpful, he was able to get on board the liberal civil society and the outward looking media on his side. They bought his story that there were parallel governments in Pakistan and that not only there was a government within government but a government on top of another government.

This resulted in the making of strange bedfellows. The centre-right PML(N) and centre-left liberal media such as Dawn and Geo, and civil society organisations such as the Human Rights Commission of Pakistan (HRCP) expressed concern over military interference in civilian democracy and stressed the supremacy of civilian institutions over the military establishment. Ironically, the same liberal media and civil society, on the other hand, shared the army’s zero tolerance for corruption and graft associated with Nawaz Sharif and his family, as well as other politicians in PPP and PTI. The army was sanguine in the view that the war on terror in which it had played a major role could not be won while politicians indulged in corruption under the veil of democracy and got away with it. Still more interesting was the role of the official opposition PPP which shared the view of the liberal media and centre-right PML(N) about civil-military relations but decided against upsetting the apple cart of democracy by forcing the PML(N) government to resign half way without completing its term of office.

This explains to a large extent the two rulings by the Supreme Court in July 2017 and February 2018 which disqualified Nawaz Sharif from holding the office of Prime Minister and preventing him from keeping an official position in his party. In the first ruling, Nawaz Sharif was convicted of violating Article 62(1)(f) of the Constitution which requires a member of National Assembly to be “honest and trustworthy”. In the second ruling he was convicted of corruption resulting in his imprisonment for ten years and a fine of GBP 8 million.

Although Article 62(1)(f) of the Constitution is open to subjective interpretation and has been applied inconsistently by the courts, it was the only smart, although strictly not technically legal, way to create a level-playing field by freeing other institutions of the state such as the NAB, FIA, PEMRA and the Judiciary from the clutches of the PML(N)-led Executive and Parliament to play their independent role in exposing the corruption of politicians across all parties.

The July 2017 ruling of the Supreme Court against Nawaz Sharif was hotly debated by lawyers on both sides of the political divide supporting or opposing him. His protest phrase ‘mujhey kiyun nikala’ (why did you oust me) went viral on the internet and was used both by his supporters and the opposition to express their views. In the same ruling, the Court directed the NAB to file references against Nawaz Sharif and his family in an accountability court using the findings of the Joint Investigation Team (JIT) which it had established to probe the charges of corruption. The accountability court completed its proceedings without any pressure from the once powerful PM House. It is, however, another issue that the July 2018 judgement of the Accountability Court, convicting Nawaz Sharif for corruption, had many holes and stands a good chance of quashing if the defence is able to prove that the judge failed to find evidence of Nawaz Sharif’s corruption in the unnamed ownership of Avenfield Apartments in London and instead, relied on circumstantial inference. The conviction has been appealed by Nawaz Sharif’s lawyers in the Islamabad High Court.

The military establishment got what it wanted in the conviction of Nawaz Sharif but it went for the overkill by gagging media to write editorials on civil-military relations or cover the narrative of PML(N). Conversely, no restrictions were imposed on media supporting PTI or denouncing PML(N). The military establishment’s alleged encouragement of new and small parties such as TLP in Punjab and PSP in Sindh emboldened these parties to nominate candidates in the election beyond their electability, which eroded the right wing vote of PML(N) and the liberal but parochial vote of MQM, both of which were not kosher in the military establishment’s books. But the military establishment neither intended to, nor was it capable of stuffing ballot papers and overturning the results by hijacking the counting and tabulation process in the night of 25-26 July 2018 to get the result it wanted.

For example, the strong watch of civil society organisations and local and international observers on the military personnel who were assigned security duties inside and outside polling stations acted as a deterrent and there were no complaints of their meddling in the voting process on election day. Similarly, the extraordinary delay in election results which created doubts about the transparency of election and systematic rigging of results did not materially affect the outcome of the poll because the tabulation of Constituency result on Form 49 was based on the results of Form 45 which contained the initial count conducted by presiding officers at the 85,000 polling stations in the presence of security personnel across the country, and was shared, although not in full compliance of the ECP rules, with party agents present at the count.

Any reviews admitted by the election tribunals will take into account the data entered by presiding officers on Form 45 and the record of ballot papers on Form 46. The military establishment could not have changed thousands of Forms 45 and 46 in one night even if it planned to affect the outcome of the votes. This is substantiated by the fact that contrary to media reports that the establishment had forced a large number of PML(N) candidates to change loyalties and contest elections as independents, only 13 independents out of 1623 who contested the election, won seats in the National Assembly. Of the 120 independent candidates believed to have been backed by the military establishment for using the Jeep symbol, none, including the blue eyed boy of the military (Chaudhry Nisar), secured a place in the National Assembly.

The PSP was also totally wiped out in Urban Sindh and TLP barely managed to get one seat in the National Assembly. The pro-military MMA got only 12 seats. Interestingly, PTI which was allegedly the favourite of the army failed to win outright majority in the National Assembly, and PML(N) which held the army responsible for its misfortunes still got a robust tally of 64 seats in the National Assembly followed by 43 by the PPP. The PML(N) received the most number of seats in Punjab Assembly and PPP received the most number of seats in Sindh Assembly. There was no way the military establishment could have prevented these parties from securing these results.

Although the new and improved legal framework for the 2018 general election was strong, and the ECP had full autonomy and powers to conduct the 2018 general election, there were many areas where its shortcomings were notable. One was its inability to effectively use IT to collect and assimilate voting results electronically and to make its website live and user-friendly for the general public; to extend the voting rights to overseas Pakistanis; to adequately security vet candidates against their proscribed status and links with groups placed on anti-terrorist lists; and to take timely action on the violations of various codes of conduct by media, political parties, presiding officers and polling agents. The ECP was also criticised for lack of clarity in assigning the powers of the presiding officers and the military officers who commanded the security personnel inside and outside polling stations; for insufficient voter education; for not imparting full and proper training to election management staff; and for imposing no financial limits on political parties to hire print space and airtime for their campaign advertisements.

On the positive side, the ECP deserves congratulations for completing the voter registration and delimitation exercise based on the new Census 2018 despite numerous challenges; for enabling 53 percent electorate to come out and vote peacefully on the polling day; for giving magistrate powers to DROs, ROs, and POs to take legal action on the spot, where required; for encouraging women participation by requiring political parties to allocate at least 5 percent share in their nominations; for discouraging political parties to conclude agreements for women-free voting by requiring each constituency result to have at least 10 percent women votes balloted; and for facilitating transgender persons and people living with disabilities to cast vote without hurdles.

Democracy is not just about holding free and fair elections. Elections are the first step toward a representative government and a robust opposition safeguarding the constitutional rights of all its citizens irrespective of their vote preference; and enacting policies which benefit all, especially minorities and marginal communities. But this first step should be right, and follow right channels. It is a good sign that all opposition parties, including PML(N) and PPP have agreed to attend Parliament and seek redress through the conflict resolution mechanism provided by election tribunals.

Until the wider political issues such as civil-military relations, separation of powers between the three branches of government, an active opposition in Parliament and the enhanced role of oversight parliamentary committees as well as other institutions of the state to end corruption and misuse of privileges in public office are addressed separately and comprehensively, it cannot be said with certainty that Pakistan is out of the woods as far as the future of democracy is concerned. However, these issues relate more to political governance than election management and will take time as democracy flourishes in Pakistan, one step at a time.

London: 1 August 2018