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Pakistan passes law to give Kulbhushan Jadhav review option, Delhi believes not enough, ‘nothing new’

A joint sitting of the Senate and the National Assembly passed a set of laws, including one to enable Jadhav to appeal against his conviction — paving the way to implement an order of the International Court of Justice (ICJ).

Written by Shubhajit Roy | New Delhi |
November 18, 2021 4:00:42 am
Kulbhushan Jadhav. (Express photo video grab)

Pakistan’s parliament on Wednesday passed a Bill to provide the right of review and reconsideration in the case of Kulbhushan Jadhav, the former India Navy officer who is on death row over spying and terror charges.

A joint sitting of the Senate and the National Assembly passed a set of laws, including one to enable Jadhav to appeal against his conviction — paving the way to implement an order of the International Court of Justice (ICJ).

India, however, is believed to have conveyed to Islamabad that the law has several “shortcomings”, and that steps are needed to implement the ICJ’s order “in letter and spirit”. Indian government sources told The Indian Express that the law is “nothing new”, but a reiteration of an ordinance issued in 2019.

“The Bill does not create a machinery to facilitate an effective review and reconsideration of Jadhav’s case,” a source said. “It invites municipal courts in Pakistan to decide whether or not any prejudice has been caused to Shri Jadhav on account of the failure to provide consular access. This is clearly a breach of the basic tenet, that municipal courts cannot be the arbiter of whether a State has fulfilled its obligations under international law… Not only this, it further invites a municipal court to sit in appeal, as it were, over a judgment of the ICJ.”

Explained

No clear road map

India believes the Bill reiterates a 2019 ordinance passed by Pakistan, without creating a machinery to facilitate an effective review and reconsideration in Kulbhushan Jadhav’s case. Officials also point out that the law effectively “invites a municipal court to sit in appeal, as it were, over a judgment of the ICJ”.

A 51-year-old retired Indian Navy officer, Jadhav was sentenced to death by a Pakistani military court on charges of espionage and terrorism in April 2017. India approached the ICJ against Pakistan for denial of consular access to Jadhav and challenging the death sentence. In December 2017, Jadhav’s wife and mother were allowed to meet him across a glass partition, with India contesting Pakistan’s claim that this was “consular access”.

On July 17, 2019, the ICJ ruled that Pakistan was obliged under international laws to provide by means of its own choosing “effective review and reconsideration” of Jadhav’s conviction.

In June 2021, Pakistan’s Lower House, the National Assembly, passed the International Court of Justice (Review and Re-consideration) Bill, 2020. However, it failed to clear the Senate, where the ruling Pakistan Tehreek-i-Insaf and allied parties don’t have a majority. On Wednesday, a joint sitting of the two Houses passed the legislation.

In the wake of the ICJ order, the Pakistan government had promulgated a special ordinance to allow Jadhav to file a review, but he had refused to do so. The Pakistan government had then filed a case in the Islamabad High Court in 2020 to appoint a defence counsel for Jadhav.

The court has since then repeatedly asked India to nominate a lawyer from Pakistan for Jadhav, but New Delhi has been seeking to appoint an Indian lawyer. At the last hearing, on October 5, 2021, the court again asked the Pakistan government to urge India to appoint a counsel. The next hearing is on December 9.

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