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Kulbhushan Jadhav refuses to file a review petition

Kulbhushan Jadhav, a former Indian Navy officer who was sentenced to death by a Pakistani military court on charges of espionage and terrorism, has refused to file a review petition against his conviction, according to Pakistan’s Additional Attorney General Ahmed Irfan. Jadhav has instead decided to go ahead with his pending mercy plea before the Pakistani President.

Background

Pakistan’s Ordinance and Jadhav’s Refusal and India’s reaction and Concerns  Implications and challenges

Jadhav was arrested by Pakistan in March 2016 from Balochistan, a restive province where Islamabad accuses India of fomenting separatism. Pakistan claimed that Jadhav was a serving officer of the Indian intelligence agency Research and Analysis Wing (RAW) and that he was involved in subversive activities in Pakistan. India denied these allegations and said that Jadhav was a retired naval officer who was kidnapped from Iran, where he was running a legitimate business.

In April 2017, a Pakistani military court convicted Jadhav of espionage and terrorism and sentenced him to death. India approached the International Court of Justice (ICJ) to challenge the verdict, arguing that Pakistan had violated the Vienna Convention on Consular Relations by denying Jadhav access to Indian consular officials and legal representation.

In July 2019, the ICJ ruled in favour of India and ordered Pakistan to provide an “effective review and reconsideration” of Jadhav’s conviction and sentence, as well as consular access to him. The ICJ also stayed Jadhav’s execution until Pakistan complied with its judgment.

In May 2020, Pakistan enacted the International Court of Justice Review and Reconsideration Ordinance, which allowed Jadhav, his legal representative, or a representative of the Indian High Commission in Islamabad to file a review petition in the Islamabad High Court within 60 days of its promulgation.

According to Irfan, Jadhav was invited to file a review petition on June 17, 2020, but he chose not to do so. He said that Jadhav preferred to follow up on his mercy petition, which he had filed in 2017 and which is still pending before the Pakistani President.

Irfan also claimed that Pakistan had repeatedly written to the Indian High Commission to file a review petition on behalf of Jadhav, but India had not responded.

India has rejected Pakistan’s claims and accused it of coercing Jadhav into not appealing against his conviction. India has also expressed its serious concerns over the ordinance and how it violates the ICJ judgment.

India has said that Pakistan has all along maintained that its laws allowed for effective review and reconsideration of Jadhav’s case, but now it has made a U-turn and issued an ordinance to ostensibly provide for some sort of review. India has also said that Pakistan is only seeking to create an illusion of remedy.

India has demanded unimpeded access to Jadhav to discuss his remedies under the ordinance. India has also said that it will do its utmost to protect Jadhav’s life and ensure his return.

Jadhav’s refusal to file a review petition effectively nullifies the hard-fought gains that India achieved at the ICJ. It also puts India in a tough spot as it limits its options to secure Jadhav’s release.

By not filing a review petition, Jadhav has foregone the possibility of another trial in a civilian court, which could have been more transparent and fair than the military court. He has also given up the chance of having legal representation and consular access, which could have helped him challenge the evidence and confession that Pakistan used against him.

By opting for a mercy petition, Jadhav has placed his fate in the hands of the Pakistani President, who may or may not grant him clemency. Moreover, a mercy petition does not address the legal flaws and violations that marred Jadhav’s conviction and sentence.

India may still try to persuade Jadhav to change his mind and file a review petition before the deadline expires. India may also explore other diplomatic and legal avenues to secure Jadhav’s release. However, Pakistan may use Jadhav’s refusal as an excuse to delay or deny further consular access or cooperation with India.

The case of Kulbhushan Jadhav has become a major source of tension between India and Pakistan, two nuclear-armed neighbours who have fought three wars since their independence in 1947. The case also reflects the deep mistrust and hostility that characterise their relations, especially over the disputed region of Kashmir.

The resolution of Jadhav’s case depends on the political will and goodwill of both countries, which are currently at a low ebb. Unless both sides show some flexibility and pragmatism, Jadhav’s fate may remain uncertain and his ordeal may continue.