South Asia

Jadhav Was 'Coerced' by Pakistan to Refuse Review of His Death Sentence, India Claims

Islamabad said Jadhav has expressed that he would rather “follow-up” on his mercy petition instead.

New Delhi: After Pakistan announced that Kulbhushan Jadhav has refused to file a review petition challenging his death sentence. India said that the former Indian naval officer had been “obviously coerced” by Islamabad to reject his rights to implement the ICJ judgment.

At a media briefing on Wednesday in Islamabad, Pakistan’s additional attorney general Ahmed Irfan said that Jadhav had been invited on June 17 to file a review petition against his death sentence in the Islamabad high court.

Last year in July, the International Court of Justice had ruled that Pakistan had breached its obligations under Vienna Convention for Consular Relations by not giving consular access to Jadhav, who had been sentenced to death by a military court.

However, ICJ had not accepted India’s petition that the sentence should be annulled and ordered Pakistan to provide “effective review and reconsideration” of Jadhav’s conviction by “means of its own choosing”.

Also read: Kulbhushan Jadhav Case: ICJ Finds Pakistan in Breach of International Law

Pakistan had arrested Jadhav on March 2016 from Balochistan. Islamabad had claimed that Jadhav was a serving Indian naval officer who had masterminded several terror incidents inside Pakistan.

Dismissing these claims, India asserted that Jadhav had already retired from the Indian Navy and Pakistan had kidnapped him from inside Iranian territory.

At Wednesday’s press briefing, the additional attorney general stated that Pakistan had enacted an ordinance called “International court of justice review and reconsideration ordinance 2020” on May 20.

“Under [the] ordinance, a petition for review and reconsideration can be made to Islamabad high court through an application within 60 days of promulgation of ordinance, that is, 20 May 2020. As per section 20 of [the] ordinance, a petition for review and reconsideration can be filed by commander Jadhav himself, [or a] legally authorised representative or a consular officer of Indian high commission,” he said.

Also read: Explainer | Kulbhushan Jadhav Case: The Legal Arguments

Further, Jadhav was invited to file a review petition for his sentence and conviction on May 17. “Exercising his legal right, commander Jadhav refused to file a petition for review and reconsideration of his sentence and conviction. He, instead, preferred to follow up on his pending mercy petition”

He added that Pakistan had also “repeatedly written to Indian high commission to file a petition in the Islamabad high court and initiate the process of review and reconsideration of sentence and conviction of Commander Jadhav before the deadline”.

Stating that Pakistan was committed to implementing the ICJ judgment in “letter and spirit”, Irfan added, “It is hoped that instead of using its usual dilatory tactics and playing politics over the issue, India will follow the due legal course and cooperate with the courts in Pakistan to give effects of the judgement of ICJ.”

About one and half months after the ICJ judgment, Pakistan had allowed an Indian diplomat to meet with Jadhav for the first time. However, the meeting was held in the presence of Pakistani officials and was recorded.

Irfan stated that Pakistan has “already offered a second consular access to India”. He also added that Pakistan has offered “a meeting with his wife and father”.

In December 2017, Jadhav had met with his wife and mother in Islamabad. India had accused Pakistan of violating the terms of the understanding reached on the protocol of the meeting and said that Pakistan had allowed the whole event to turn into a media spectacle.

India’s response

India’s response, issued on Wednesday night, was silent on the second consular access offer, but outrightly dismissed Pakistan’s ordinance and said that its claim that Jadhav refused a review is an “illusion of remedy”.

India criticised Pakistan’s enactment of an ordinance claiming that it was an “U-turn’ from the latter’s position that Pakistani laws had enough provisions for an effective review and reconsideration. “…we have protested it all along,” said MEA spokesperson Anurag Srivastava referring to India’s position at ICJ that the Pakistani legal jurisprudence did not allow for a fair review of Jadhav’s case.

Srivastava also revealed that India has “already expressed our serious concerns at the contents of the Ordinance and how it violates the ICJ judgement”. “Pakistan is only seeking to create an illusion of remedy,” he asserted.

Incidentally, Pakistan had not publicly announced the ordinance and the media did not report its enactment in May. The Pakistan foreign office claimed in a separate statement on Wednesday night that India had been invited to file a review petition “through diplomatic channels”. It is assumed that India’s protest on the Pakistani ordinance was also made through a similar process since it was not publicly stated before.

“Pakistan’s claim that Shri Jadhav, who is incarcerated in Pakistan’s custody, has refused to initiate review petition is a continuation of the farce that has been in play for the last four years,” stated Srivastava.

Noting that Jadhav remains in military custody, India said that he had been clearly coerced to refuse to file a review of his case.

Srivastava also stated that India had apparently sought “unimpeded access” to Jadhav under the Ordinance. 

“In a brazen attempt to scuttle even the inadequate remedy under the ordinance, Pakistan has obviously coerced Shri Jadhav to forego his rights to seek an implementation of the judgment of the ICJ,” he said.

It means that while India had described the ordinance as violating the ICJ judgement, New Delhi had been still willing to go along if it had got “unimpeded access” to Jadhav – that is, a completely unsupervised meeting.

During the briefing, Pakistan’s additional attorney general stated that Jadhav was offered legal assistance. 

However, Srivastava reiterated that Pakistan has denied India’s demand to allow a lawyer from outside Pakistan to appear for Jadhav in any review and reconsideration proceedings.

“Since 2017, when a military court carried out a farcical trial, Pakistan has refused to hand over any relevant document, including the FIR, evidence, court order, etc in the case to India. Clearly, Pakistan is attempting to create a mirage of compliance with the ICJ judgment”.

Reiterating that the Indian government will do its utmost to “protect” Jadhav and ensure his safe return, MEA spokesperson concluded, “To that end, it would consider all appropriate options”.