Jadhav case stuck in limbo
Kulbhushan Jadhav continues to be in Pakistan’s custody with a death sentence hanging over his head. On July 8, the Ministry of External Affairs (MEA), correctly noted, on the latest developments in the case, ‘Clearly, Pakistan is trying to create a mirage of compliance with the ICJ judgment.’ Last July, the International Court of Justice (ICJ) had decisively held Pakistan guilty of violating Article 36 of the Vienna Convention on Consular Relations (VCCR) by denying India consular access to him. It instructed Pakistan to ensure that India was given such access. It also directed Pakistan to review and reconsider the judicial proceedings against him.
Consular access is given to a foreign national to meet his country’s accredited representatives in a free and non-coercive environment so that the person can talk without fear. This is especially important in cases such as Jadhav’s where the custody has been over an extended period and a death sentence has been given following non-public trial by a military court. Pakistan had no choice but to allow India consular access. It did so on September 2 last year, but the whole objective was lost because the Pakistani authorities monitored Jadhav’s meeting with the then Indian Charge d’Affaires in Islamabad. Following the meeting, the MEA stated, ‘Jadhav seemed to be under extreme pressure to parrot a false narrative to bolster Pakistan’s untenable claims.’ Thus, Pakistan has till now only seemingly fulfilled the ICJ judgment on the consular issue.
Again, Pakistan has as yet followed the same practice in the matter relating to the reconsideration of Jadhav’s trial. It is merely trying to create the impression that it is fulfilling its obligation, nothing more. In May, it passed a presidential ordinance empowering its high courts to hear appeals of foreign nationals aggrieved for violation of Article 36 of the VCCR and who were convicted by the military courts. However, the ambit of appeal is severely restricted, for the courts can only ‘examine whether any prejudice has been caused to the foreign national in respect of his right of defence, right to evidence and principles of fair trial, due to denial of consular access.’ This can hardly inspire any confidence that the military court’s processes and the verdict itself will be carefully scrutinised.
Significantly, Pakistan did not want Jadhav to even take the meaningless offer it made. At a media briefing in Islamabad on July 8, Pakistani officials disclosed that Jadhav had refused to file an appeal in the high court, and instead wanted to pursue the mercy petition route. Separately, the spokesperson for the Pakistan foreign ministry said, ‘India is invited to file review and reconsideration petition to give effect to the judgment of the ICJ.’ Under the ordinance, this the government cannot ordinarily do unless authorised by Jadhav.
The ordinance does contain a provision empowering the Pakistani authorities to pass orders for removing difficulties that may arise to implement its objectives. Presumably, therefore, they could pass an order allowing India to file an appeal, even if Jadhav has not authorised it. But if they can do this, they can also allow India to appoint an Indian lawyer to represent it before the Pakistan courts. This they are unwilling to do. India has rightly stated that ‘a farce has been in play for the last four years’.
All this leads to the conclusion that now, as before, Pakistan wants to use the case to put India in the dock of international opinion as a country that has indulged in state terrorism. That has been its aim since the beginning of this matter in March 2016. The confessions extracted from Jadhav, the vile targeting of senior Indian officials, including at ICJ hearings, the contemptible drama enacted during Jadhav’s mother and wife’s meeting with him in 2017, its refusal to hand over all papers relating to this case and the recent developments, all establish this point. Pakistan has not succeeded in its attempts to tarnish India’s image but its irrationality in dealing with India has always led it to pursue illogical and aggressive paths.
The MEA concluded its July 8 statement, assuring that ‘Government will do its utmost to protect Shri Jadhav and ensure his safe return to India. To that end, it will consider all options.’ The entire country would wish the government well in these endeavours. He has suffered so much already. While India must insist that Pakistan sees reason and releases Jadhav, realism and patience must temper expectations. This is on several factors, beginning with the fact that the present case is only one of the two filed against him. This one was for espionage, the second is for terrorism — an absurdity. That Pakistan has not begun as yet claiming, as its judge on the ICJ bench stated, that India is not cooperating to enable it to begin it! India has asked it for full evidence and ‘unimpeded’ access to Jadhav to establish facts. It has not responded to these reasonable demands.
International experience shows that matters such as Jadhav’s are settled between countries through negotiations. This is difficult to envisage because for Pakistan, the entire exercise was for propaganda purposes. In the process, it has taken positions that have been spurned by the international community but have played well domestically.
It is a long road ahead to get Jadhav safely back to India. The international community must urge Pakistan to be reasonable and not adventurous on this issue.
