Pak claims Kulbhushan refused to file review plea; India says it's farce

Pakistan said on Wednesday that Indian prisoner on death row Kulbhushan Jadhav has refused to file an appeal in the Islamabad High Court against his conviction by a military court despite Pakistani authorities' offer to do so, a claim dismissed by India as "farce".

Jadhav, the 50-year-old retired Indian Navy officer, was sentenced to death by a Pakistani military court on charges of "espionage and terrorism" in April 2017. Weeks later, India approached the ICJ against Pakistan for denial of consular access to Jadhav and challenging the death sentence.

The Hague-based ICJ ruled in July last year that Pakistan must undertake an "effective review and reconsideration" of the conviction and sentence of Jadhav and also to grant consular access to India without further delay.

On Wednesday, Pakistan's Additional Attorney General Ahmed Irfan said that on June 17, 2020, Jadhav was offered to file an appeal in the Islamabad High Court for review and reconsideration of his sentence and conviction.

"Exercising his legal right, Commander Jadhav refused to file a petition for the review and reconsideration of his sentence and conviction. 

He instead preferred to follow up on his pending mercy petition," said Irfan, who was addressing a press conference along with Director General (South Asia & SAARC) Zahid Hafeez Chaudhry.

He said the Pakistan government promulgated an ordinance on May 20 to let the Indian government, Jadhav or his legal representative to file a review petition in IHC within 60 days. The ordinance would expire on July 19.

Commenting on Irfan's remarks, the Ministry of External Affairs in New Delhi dismissed his claim as "continuation of farce that has been in play for the last four years." Noting that Jadhav was sentenced to execution through a farcical trial, the ministry said that he "was coerced to refuse to file review in his case".

"Despite our repeated requests, Pakistan continues to deny India free and unimpeded access to Jadhav," the MEA said and sought unimpeded access to him to discuss his remedies.

Pakistan coerced Jadhav to forgo his rights to seek implementation of judgment of International Court of Justice, it said.

"Clearly, Pakistan is attempting to create a mirage of compliance with ICJ judgement in Jadhav case," the MEA said, adding that India will do its utmost to protect Jadhav and ensure his safe return.

In Islamabad, Irfan claimed that Pakistan has repeatedly written to the Indian High Commission, inviting it to file a petition at the Islamabad High Court to appeal the judgement against Jadhav before the deadline.

He 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 him. Therefore, an Indian lawyer cannot advocate for Jadhav but they may be allowed to assist his counsel.

The MEA, however, said that Pakistan refused to hand over any relevant document, including FIR, evidence, court order, in Jadhav case to India.

Irfan said Pakistan allowed consular access to Jadhav twice in the past and has offered to do so again. Authorities have also offered to arrange Jadhav's meeting with his father and wife, he said.

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

"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 International Court of Justice," the spokesperson said.

The spokesperson said that the mercy petition in Jadhav case "is a separate process that has nothing to do with the review and reconsideration.” The review and reconsideration petition can be filed by Jadhav himself, legally authorized representative, or a consular officer of the Indian High Commission, the spokesperson said, adding that it has been conveyed to India through diplomatic channels.

Pakistan claims that its security forces arrested Jadhav from the restive Balochistan province on March 3, 2016 after he reportedly entered from Iran.

India maintains that Jadhav was kidnapped from Iran where he had business interests after retiring from the Navy.

In its 42-page order, the ICJ, while rejecting Pakistan's objection to admissibility of the Indian application in the case, had held that "a continued stay of execution constitutes an indispensable condition for the effective review" of the sentence of Jadhav.

The bench, however, rejected some remedies sought by India, including annulment of the military court's decision convicting Jadhav, his release and safe passage to India.

The ICJ upheld India's stand that Pakistan had "breached" the Vienna Convention on diplomatic relations, which gives countries the right to consular access when their nationals are arrested abroad.