Pak forcing Jadhav not to file review petition: India

New Delhi’s response came hours after senior officials in the Pakistani capital claimed Jadhav had refused to file an appeal in the Islamabad high court against the death sentence given by a military court despite an offer to do so.

India on Wednesday accused Pakistan of coercing Kulbushan Jadhav, a former naval officer sentenced to death on charges of spying, not to file a petition seeking a review of his case and of not complying with the International Court of Justice’s (ICJ) verdict to review his conviction.

New Delhi’s response came hours after senior officials in the Pakistani capital claimed Jadhav had refused to file an appeal in the Islamabad high court against the death sentence given by a military court despite an offer to do so.

Pakistan also offered consular access to Jadhav and to arrange a meeting between him and his father and wife, though there was no immediate response from the Indian side.

Jadhav was arrested by Pakistani security agencies in Balochistan in March 2016 and charged with involvement in spying. In April 2017, Pakistan announced he had been sentenced to death by a military court.

The ICJ ruled in July 2019 that Pakistan had violated Jadhav’s rights under the Vienna Convention on Consular Relations and stayed his execution while calling on Islamabad to take all steps for an “effective review and reconsideration” of his sentence, including “enacting appropriate legislation”.

The Pakistan government promulgated an ordinance on May 20 allowing Jadhav, his legal representative or the Indian government to file a review petition in the Islamabad high court within 60 days, which will end on July 19, additional attorney general Ahmed Irfan and Zahid Hafeez Chaudhry, director general (South Asia) in the Foreign Office, told a news conference in Islamabad on Wednesday.

“Exercising his legal right...Jadav refused to file a petition for the review and reconsideration of his sentence and conviction. He instead preferred to follow up his pending mercy petition,” said Irfan, adding Pakistan has written to the Indian mission to file a petition in the high court before the deadline.

In New Delhi, external affairs ministry spokesperson Anurag Srivastava described Pakistan’s position as an attempt to “mask its continuing reticence to implement the ICJ judgment in letter and spirit”.

“Pakistan’s claim that Jadhav...has refused to initiate a review petition is a continuation of the farce that has been in play for the last four years. Jadhav has been sentenced to execution through a farcical trial. He remains under custody of Pakistan’s military. He has clearly been coerced to refuse to file a review in his case,” he said.

Srivastava noted that Pakistan passed the ordinance in May to allow the high court to review the sentence after maintaining for long that its laws allowed for effective reconsideration.

“Now, after almost a year, they have made a U-turn and issued an ordinance to ostensibly provide for some sort of review. We have already expressed our serious concerns at the content of the ordinance and how it violates the ICJ judgment. Pakistan is only seeking to create an illusion of remedy,” he added.

India has pushed for the full implementation of ICJ’s judgment and sought “unimpeded access to Jadhav to discuss his remedies under the ordinance”, he said.

Srivastava described the latest turn of events as a “brazen attempt to scuttle even the inadequate remedy under the ordinance” since Pakistan has “obviously coerced Jadhav to forego his rights” to seek implementation of the ICJ judgment.

Despite India’s repeated requests, Pakistan has denied free and unimpeded access to Jadhav, he said. India has repeatedly asked for a lawyer from outside Pakistan to be allowed to appear for Jadhav in any review proceedings but Pakistan has denied this, he added.

Since 2017, when the military court carried out its trial, Pakistan has refused to hand over any documents, including the FIR, evidence or court order. “Clearly, Pakistan is attempting to create a mirage of compliance with the ICJ judgment,” Srivastava said.

Noting that ICJ has already said Pakistan is in “egregious violation of international law”, Srivastava said the Indian government will do its utmost to protect Jadhav and ensure his safe return home. “To that end, it would consider all appropriate options,” he said.

The Pakistani officials referred to India’s request to allow an Indian lawyer to represent Jadhav and said only a lawyer holding a licence of the Islamabad high court can appear in the proceedings. An Indian lawyer cannot appear for Jadhav but may be allowed to assist his counsel, they said.

The officials said Pakistan had allowed consular access to Jadhav twice and offered to do so again. It has also offered to arrange a meeting between Jadhav and his father and wife, they said, adding Jadhav’s mother and wife were earlier allowed to meet him in December 2017.

Pakistan’s Foreign Office spokesperson also said late on Wednesday that Jadhav’s mercy petition is a separate matter that isn’t connected to the review process. While Jadhav’s mercy petition is pending, “India is invited to file review and reconsideration petition to give effect to the judgement of ICJ”, the spokesperson said.

After the Pakistan Army chief endorsed the death penalty for Jadhav in April 2017, he filed a mercy petition in June the same year. The current status of this petition is not known.

India has rejected the allegations against Jadhav and said he was kidnapped by Pakistani operatives from the Iranian port of Chabahar, where he was running a business.