Sunday, December 5, 2021

The Kulbhushan Jadhav Case And Pakistani Charade

Last week, Pakistan organised consular access to Kulbhushan Jadhav for the second time after India fielded twelve requests for the same. This access was as much of a farce as the previous one in September 2019.

In response to Indian requests, Pakistan had assured “unimpeded, unhindered and unconditional access” following the promulgation of an ordinance in May 2020, ostensibly, to comply with the July 2019 directive from International Court of Justice (ICJ) to provide “an effective mechanism for review and reconsideration” of the April 2017 verdict of the military court sentencing Jadhav to death in a trumped up case of espionage and subversion in Pakistan.

It was hoped that Pakistan would honour its assurance. Two Indian high commission officials were granted access in the presence of Pakistani officials “with an intimidating demeanour” despite protests from the Indian side. The whole meeting was being recorded and no free conversation was possible to engage Jadhav on his legal rights of appeal for review and obtain his signature for pursuing the case as per the provisions of the Pakistani ordinance.

India has said that this exercise was “neither meaningful nor credible” and called Pakistani approach “obstructive and insincere”. It is clear that Pakistan had turned the whole incident into a Public Relations exercise rather than seeking to sincerely implement the ICJ judgment.

Interestingly, last month, Additional Attorney General of Pakistan Ahmed Irfan had informed the media that Jadhav was invited to file a review petition on 17 June but he had “refused to do so for “reconsideration of his sentence and conviction”.

As per the ordinance, Jadhav had a window of 60 days within which he had to file his review petition. This deadline has already expired, even as the Pakistani Foreign Minister, Shah Mahmood Qureshi has now offered consular access for a third time without the presence of any Pakistani official!

Indian has reiterated that any conversation between consular officials and Jadhav “must necessarily take place in privacy and without the presence of any Pakistani official or recording by Pakistan” to enable Jadhav to “speak freely without any concerns of reprisal” especially because he has been in custody for long and has been intimidated repeatedly in the past, “including in being made to express his alleged disinclination to seek a review”.

It has been for four long years that Jadhav, an Indian national, has been incarcerated in illegal custody in Pakistan, following his kidnapping by Pakistani security forces in March 2016 from Iran. He was subsequently sentenced to death by a military court on 10 April 2017. India took the matter to ICJ on 8 May, and 10 days later, the ICJ, through provisional measures, ordered Pakistan to ensure that Jadhav was not executed, pending a final judgment by the court.

After two years, on 17 July 2019, the Court upheld the Indian contention that Pakistan had breached its own obligations under the 1963 Vienna Convention on Consular Relations by not notifying India of Jadhav’s detention and depriving India of its right to access and render consular assistance and arrange for Jadhav’s legal representation.

The Court directed Pakistan to inform Jadhav of his rights and to provide India consular access. It also said India was entitled to “restitutio in integrum” or restoration of the position prior to violation of rights and asked Pakistan to recognise the right of the accused to a fair trial. It ordered Pakistan to respect Jadhav’s right to appeal for effective review and reconsideration of his conviction and sentence by a means of its own choosing.

India’s Ministry of External affairs said, in the absence of an unimpeded and unhindered consular access as well as of the relevant documents, as a last resort, India tried to file a petition on 18 July. However, India’s Pakistani lawyer informed that a review petition could not be filed in the absence of power of attorney and supporting documents related to Jadhav’s case.

It is hoped that Pakistan will not squander away the opportunity to prove its sincerity to abide by its commitments to good behaviour in so far as the Vienna conventions are concerned.

Script: Dr. Ashok Behuria, Senior Fellow & Coordinator, South Asia Centre, Manohar Parrikar Institute for Defence Studies & Analyses

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