PAKISTAN and India signed the Agreement of Consular Access in 2008 to provide reciprocal consular facilities to each other’s prisoners. The primary objectives of this legal instrument are to address the significant challenges in protecting the fundamental rights of prisoners confined in each other’s jails through a collaborative approach and determination.
The rights covered include providing consular access to prisoners, exchanging prisoner lists at defined intervals, ensuring health care, verifying national identity, keeping both governments informed about arrested citizens, their sentences, repatriation of prisoners who have completed their sentences, and examining cases of detention and punishment on security and political grounds judiciously.
The agreement also emphasizes the compassionate and humanitarian treatment of prisoners by working collectively for their repatriation. While the agreement has addressed many challenges and protected the rights of prisoners, some clauses need revisiting due to significant changes. This revision is essential to ensure that the rights of prisoners and their families are protected under the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
Any accused cannot be deprived of from proving his innocence during trial. A trial is considered as the backbone of criminal litigation and the criminal justice system. That is the reason article 10 of the Universal Declaration of Human Rights terms “fair trial” as a fundamental right of all and sundry in these words “Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him”.
However, the Consular Access Agreement does not contain even a single clause or sub-clause that makes it binding for both countries to give opportunities of fair trial to prisoners of both countries. That is the reason incarcerated fishermen of both countries neither afford lawyers in each others’ countries nor have “fair trial” opportunity to prove their innocence. They are simply arrested on minor or major offences, presented before a court of law, and awarded sentences without availing the legal right of defence.
Even, prisoners of both countries are kept in prisons after completion of their awarded sentence if the political or border situation between both countries is disturbed. The fisherfolk community of India and Pakistan is the most hostile to this deplorable situation. Even, prisoners after being deprived of from fair trial opportunity are unable to challenge their sentence in higher courts of the land because of financial constraints, lack of interest of governments, lawyers, civil society, and human rights activists, and negligence as well as disinterest of both countries who did not even protect the basic right of prisoners.
—The writer is a Lahore-based lawyer of High Court, human rights activist and working on Criminal Justice System of Pakistan.
