Allowing Jadhav to meet his wife is not consular access: Pak experts tell Islamabad

Legal experts have advised the Pakistan Foreign Office that allowing a meeting between alleged Indian RAW agent Kulbushan Jadhav and his wife could not act as a substitute for consular access the Pakistan government has denied to the Indian government and the alleged arrested agent’s family during the last year.

The Indian government has based its case in the International Court of Justice (ICJ) on the legal point that Pakistani government had violated the Vienna Convention on Consular Relations, stating that Pakistan has repeatedly denied consular access to Jadhav.

While pleading before the ICJ in May this year, the Indian diplomats and lawyers took the position that “it was not informed of Jadhav’s detention until long after his arrest,” and learned about the death sentence through the media.

Jadhav was arrested on March 3, 2016, in a counter-intelligence operation in Balochistan’s Mashkel area for his involvement in espionage and sabotage activities against Pakistan. He was sentenced to death by a military court in April this year.

In the second week of November, Pakistan granted permission to Jadhav to meet his wife, months after a request was made by India’s Ministry of External Affairs, an official statement said. “The Government of Pakistan has decided to arrange a meeting of Commander Kulbhushan Jadhav with his wife, in Pakistan, purely on humanitarian grounds,” spokesperson Mohammad Faisal said in a statement.

“A Note Verbale to this effect has been sent to the Indian high commission in Islamabad, today (Friday).” It is not clear what prompted Islamabad to allow Jadhav’s wife to meet him in Pakistan.

There were rumours that the two countries discussed the issue in a recent meeting between Indian External Affairs Minister Sushma Swaraj and the newly appointed Pakistan High Commissioner to New Delhi Sohail Mahmood. Islamabad, however, denied that the Indian spy’s incarceration came up for discussion.

A senior Pakistani lawyer on the condition of anonymity told Newslaundry that his opinion was sought on the issue and he had advised the Foreign Office that consular access requires that you allow the arrested personnel’s government to provide legal facility to him in fighting the case that the host government has instituted against him.

“Allowing wife or mother to meet the arrested person cannot be a substitute for the consular access that Pakistan has denied to Kulbushan Jadhav,” said the senior lawyer, who is an expert on international law and whose legal opinion the Pakistan government seeks on issues relating to international law.

The Pakistani government’s denial of consular access to Jadhav had come under criticism from few human rights activists from within the country, especially renowned human rights activist Asma Jahangir.

Jahangir had criticised the Pakistani government for denying consular access and had stated publicly that this decision had weakened Pakistan’s case in the ICJ. Other senior lawyers had also pointed out that government’s decision of denying consular access allowed the Indian government to present this decision as the major loophole in the trial of Kulbushan Jadhav before the military court.

In the ICJ proceedings, India appealed to the UN’s top court to order Pakistan to suspend its planned execution of Jadhav, saying his right of consular access had been violated by Islamabad. Harish Salve, leading the Indian legal team, had focused his arguments on Pakistan’s denial of consular access to Jadhav as he presented India’s case before the judicial body.

Pakistani lawyers and diplomats, on the other hand, pointed out to the ICJ that the provisions of the Vienna Convention do not apply to a “spy involved in terror activities”. Pakistani team at the ICJ said that Jadhav “is a terrorist” and “India invoked the jurisdiction of this court improperly”.

“India’s allegation regarding the kidnapping of its spy is not true and he was arrested by Pakistani forces from Balochistan,” the Pakistani lawyer maintained before the ICJ. Pakistan seems to have taken solace (in this situation of a weak legal basis for its case) from the fact that the Indian government has positively responded to Pakistan’s offer for a meeting between Jadhav and his wife. However, Pakistani media reported that the Indian government has attached certain conditions to the acceptance of the offer.

One of the conditions was that the Pakistani government also issue a visa to Jadhav’s mother so that she could accompany his wife to Pakistan and meet her son in Pakistani captivity.

New Delhi did not make public its response to the offer. The media came to know about it through a tweet by Foreign Office spokesman Dr Mohammad Faisal, who also heads the South Asia directorate at the Ministry of Foreign Affairs.

“Indian reply to Pakistan’s humanitarian offer for Commander Jadhav received and is being considered,” Dr Faisal tweeted.

Pakistan has so far not responded to the Indian request to issue a visa to Kulbushan’s mother. However, officials from Pakistani side said that few in Pakistan had any objection to allowing the mother to meet the son as well.

Similarly, Pakistan has not taken any decision so far to allow proper consular access to Kulbushan Jadhav. The Indian government has repeatedly asked Pakistan to allow consular access to Jadhav.

Jadhav was sentenced to death by a military tribunal earlier this year for his involvement in terrorism and espionage. His appeals against the conviction have been rejected by the military appellate court and his mercy petition has been lying with Pakistan Army chief General Qamar Bajwa.

India has challenged Pakistan’s refusal to grant consular access to the spy in the ICJ, which has restrained Islamabad from executing him till it decides the case.

In Pakistan, it has been a tradition and part of the jail manual to allow the nearest relative to meet the death row convict hours before the execution. Senior Pakistani lawyers have repeatedly and publicly advised Pakistani government not to violate the ICJ’s stay order and not to execute Kulbushan before the court’s final decision.