Indian spy Jadhav refused to file review petition in IHC despite Pakistan's offer, officials say

Updated 08 Jul 2020

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Additional Attorney General Ahmed Irfan and Director General (South Asia & SAARC) Zahid Hafeez Chaudhry said Pakistan has offered consular access and a meeting of Indian spy Kulbhushan Jadhav with his father. — DawnNewsTV
Additional Attorney General Ahmed Irfan and Director General (South Asia & SAARC) Zahid Hafeez Chaudhry said Pakistan has offered consular access and a meeting of Indian spy Kulbhushan Jadhav with his father. — DawnNewsTV

Indian spy Kulbhushan Jadhav has refused to file an appeal in the Islamabad High Court against his conviction and subsequent death sentence by a military court despite authorities' offer to do so, officials said on Wednesday.

Instead, officials added, Jadhav had decided to apply for a mercy petition.

Jadhav — a serving commander of the Indian Navy associated with Indian spy agency Research and Analysis Wing — was arrested on March 3, 2016, from Balochistan on allegations of espionage and terrorism.

In a press conference in Islamabad today, Additional Attorney General Ahmed Irfan and Director General (South Asia & SAARC) Zahid Hafeez Chaudhry said that an ordinance was promulgated by the government on May 20, which allowed the Indian government, Jadhav and his legal representative to file a review petition in IHC within 60 days, which expire on July 19.

They said Indian authorities had requested to appoint an Indian lawyer to advocate for Jadhav but if an appeal is filed in the IHC, only a lawyer that holds a license of the respective court would be able to represent the spy. Therefore, an Indian lawyer cannot advocate for the convicted spy but they may be allowed to assist Jadhav's counsel.

The Pakistani government had allowed consular access to Jadhav twice in the past and has offered to do so again, the officials said. Authorities have also offered to arrange Jadhav's meeting with his father and wife, they added. The AAG and DG (South Asia & SAARC) expressed hope that the Indian government will respond positively to this offer.

Both officials recalled that Pakistan had earlier allowed Jadhav's mother and wife to meet him and said that the government had complied with the verdict of the International Court of Justice (ICJ) passed last year.

They said Pakistan had provided evidence of Indian state terrorism to the international community multiple times and will continue to do so.

India invited to file review petition

Later, Foreign Office spokesperson Aisha Farooqi in a statement said that Pakistan has invited India to file the "review and reconsideration petition" after Jadhav's refusal to do so.

She explained that the mercy petition in the case is a separate process "that has nothing to do with the review and reconsideration" petition. That review petition can be filed by Jadhav himself or a legally authorised representative or a consular officer of the Indian High Commission, she added.

"While Commander Jadhav’s mercy petition is still pending, India is invited to file review and reconsideration petition to give effect to the judgment of the ICJ," Farooqi said, adding that the same has been conveyed to India through diplomatic channels as well.

ICJ verdict

In his trial at a military court after his arrest, Jadhav had confessed to his involvement in terrorist plots.

The spy was subsequently sentenced to death in 2017. However, India insisted that Jadhav was not a spy and said he was kidnapped from Iran.

On April 10, 2017, Army Chief Gen Qamar Bajwa had endorsed the death penalty for Jadhav. In June 2017, the Indian spy had filed a mercy petition against the death penalty, in which he again confessed to his involvement in terrorist activities.

However, before Pakistani authorities could make a final decision, the ICJ, after being approached by India, had ordered a stay in his execution through an interim order in 2019.

Later that year, ICJ announced its verdict on the Kulbhushan Jadhav case, ruling that Jadhav be allowed consular access immediately and asking Pakistan to ensure “effective review and reconsideration of his conviction and sentences”.

The ICJ, however, rejected all other remedies sought by India, which included the annulment of the military court decision convicting Jadhav, restricting Pakistan from executing the sentence, securing Jadhav's release and ordering his return to India.

The ICJ said that even though it had found Pakistan in violation of Article 36 of the Vienna Convention on Consular Relations (VCCR), "it is not the conviction and sentence of Mr. Jadhav which are to be regarded as a violation of Article 36 of the Vienna Convention."

The most the ICJ said it could do was to order Pakistan to cease violation of Article 36 and review the case in light of how that violation may have affected the case's outcome.

"The Court notes that Pakistan acknowledges that the appropriate remedy in the present case would be effective review and reconsideration of the conviction and sentence," it observed.

To this end, Pakistan was directed to immediately inform Jadhav of his rights under Article 36, grant India consular access, and then review the case while considering, under the laws of Pakistan, how not doing so earlier may have impacted the case's outcome.