India is likely to get consular access to retired naval officer Kulbhushan Jadhav. Pakistan has offered to allow Indian officials meet Kulbhushan Jadhav on Friday. The International Court of Justice (ICJ) had directed Pakistan to do so.
The development may open up a window of possibility that Kulbhushan Jadhav may get his case argued in a Pakistani court. This comes nearly two weeks after the ICJ directed Pakistan to undertake an effective review and reconsideration of the conviction of Kulbhushan Jadhav by a military court.
It is still not clear as to on what conditions Pakistan has made the offer of consular access. If it happens in free and fair manner and India gets a lawyer to argue Kulbhushan’s case in Pakistan, it may prove to be a game-changer.
The constitutional amendment which gave the Field General Court Martial (FGCM) jurisdiction over Kulbhushan Jadhav trial lapsed early this year. The military courts of Pakistan had been given jurisdiction to try civilians in the certain cases in the aftermath of Peshawar school terror attack. In 2017, the jurisdiction was extended by two years. It has ended now.
Before jurisdiction of the military courts lapsed three months ago, Kulbhushan had two legal options under the Pakistan Army Act, 1952. He could appeal before the Military Appellate Tribunal for a review.
The second option was to get the decisions reviewed by a civilian court, which did not have the authority to overturn the ruling. But Kulbhushan Jadhav could have a lawyer of his choice. However, the permission for such a review was not granted in Pakistan.
Now that Pakistan is under international obligation to review and reconsider conviction of Kulbhushan Jadhav, it faces a dilemma if it wants to circumvent the ICJ ruling.
If Pakistan refers the review of Kulbhushan to the Military Appellate Tribunal, it will violate its domestic law. And, if Pakistan refers the matter to a civilian court where India will be in a position to hire a good lawyer to argue Kulbhushan Jadhav’s case, the government faces a risk of exposing its powerful military establishment.
Kulbhushan Jadhav has another option of filing a mercy plea before the President of Pakistan. But with diplomatic stakes being so high, it is highly unlikely that following the consular access, India would back this option. A mercy plea will validate Pakistan’s claim that Kulbhushan Jadhav was in Baluchistan to fuel unrest.
India and Pakistan differ on how and from where Kulbhushan Jadhav came in the custody of Pakistani authorities. Pakistan says he was arrested from its restive Baluchistan province.
India and some of the foreign agencies — including those of Germany and Afghanistan — have refuted Pakistan’s claim. India has maintained that Kulbhushan Jadhav was abducted from Chabahar area of Iran, where he has business interests, by private militia and handed over to Pakistani agencies for money.
Source – India Today