Explained | Will Pakistan law on Kulbhushan Jadhav help India’s position?

Why was it enacted? Have the guidelines laid down by the International Court of Justice been fulfilled?

November 21, 2021 04:00 am | Updated November 22, 2021 10:36 am IST

A placard depicting Kulbhushan Jadhav is pictured in the neighbourhood where he grew up in Mumbai on July 17, 2019.

A placard depicting Kulbhushan Jadhav is pictured in the neighbourhood where he grew up in Mumbai on July 17, 2019.

The story so far: On November 17, Pakistan’s Parliament passed the International Court of Justice (Review and Reconsideration) Bill, 2021 , granting the right of appeal to Kulbhushan Jadhav, former Indian Navy officer on death row on espionage and other charges. India expressed misgivings about the law, saying it still does not fulfil the terms laid down by the International Court of Justice (ICJ) in its July 2019 ruling which included the provision that India be allowed consular access to Jadhav.

When was he arrested?

Kulbhushan Jadhav was arrested in March 2016 and charged with espionage and sabotage against Pakistan’s security installations. The case received attention as it came soon after the January 2016 Pathankot terror strike that India blamed on Pakistan-based terrorists. Pakistan blamed India for sponsoring cross-border terrorism targeting Balochistan. India maintained that Jadhav was a former Navy official and that he had been denied rightful access to legal counsel. The Pakistani law is another episode in the protracted legal process that began when India approached the ICJ.

What had India argued at the ICJ?

India had argued at the ICJ in May 2017 that Jadhav had been denied his rights under the Vienna Convention and Pakistan had “failed to inform” New Delhi about his arrest. The law passed on November 17 at a joint session of the two Houses of Pakistan’s parliament is being presented by the Imran Khan government as proof of Islamabad complying with the ICJ ruling.

What did the ICJ rule?

In April 2017, a year after his arrest, Jadhav was sentenced to death by a military court in Pakistan for alleged acts of sabotage. India moved the ICJ and pointed out that Pakistan had failed to provide consular access to Jadhav.

In its observations of May 18, 2017, the ICJ asked Pakistan to take “all measures at its disposal” to ensure that Jadhav is not executed pending its final decision . It observed that Pakistan had violated Article 36 of the Vienna Convention by not allowing India consular access to Jadhav and by denying his right to a proper legal representation.

Will this law help Jadhav access his legal counsel?

The law will end up as mere paper work if Pakistan fails to provide verifiable legal access to Jadhav. India has already expressed its misgivings. The Ministry of External Affairs said the law is a repeat of the International Court of Justice (Review and Reconsideration) Ordinance, 2020, that Delhi had rejected as inadequate for meeting the goals stated in the ICJ’s observations of July 2019. India said the ordinance did not “create the machinery of an effective review and reconsideration” as mandated by the ICJ.

The Ministry of External Affairs pointed out in a statement that the law of November 2021 has actually codified the Ordinance of May 2020 without removing the shortcomings. India maintains that Pakistan cannot provide a “fair trial” for Jadhav.

Why has Pakistan made this move now?

Pakistan’s Law Minister Farogh Naseem said Pakistan anticipated that India was planning to go to the ICJ again to file a contempt notice against Pakistan and that this law had averted or pre-empted this possible Indian move. Following this new law, Pakistan is likely to claim that it has not just complied with the verdict of the ICJ but has also enshrined it as a law. Pakistan's former High Commissioner Abdul Basit has pointed out that Pakistan agreed to accept the jurisdiction of the ICJ during the government of Prime Minister Nawaz Sharif of the Pakistan Muslim League (Nawaz) and that the present government of Prime Minister Imran Khan is dealing with a legacy issue.

Also read | Nawaz Sharif govt 'complicated' Kulbhushan Jadhav case: Pakistan Foreign Minister

It, therefore, appears that the law is also a move to settle a domestic political discord between Mr. Khan and the principal Opposition party, led by Maryam Nawaz, daughter of Mr. Nawaz Sharif.

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