LUCKILY, Pakistan and India adopted the same Code of Criminal Procedure 1898, but with a few amendments. India also replaced the name of CrPC 1898 with the Code of Criminal Procedure 1973. Arrested persons in cognizable and non-cognizable offences are supposed to be produced before a magistrate.
Then, police or concerned law and enforcement agency completes an investigation and submits “challan” or “investigation report” to the court of the magistrate. Later on, most trials of foreigners are conducted in special courts that convict or acquit accused persons at the end of a trial.
However, not even a single clause or sub-clause has been added in the Consular Access Agreement regarding the provision of documents to relatives of prisoners related to trial proceedings of prisoners. Such as I am rendering my free legal services for arrested fishermen in India and Pakistan at the expense of my own pocket. I got court papers from Pakistan by adopting traditional methods of receiving copies of court files. However, I am unable to get access to pre-trial and post-trial proceeding documents of Pakistan’s fishermen detained in Indian prisons. Article 10 of the Universal Declaration of Human Rights safeguards the right to “fair trial” irrespective of nationality, religion, sect, colour and any other discrimination. Pakistan and India both and signatories of UDHR. However, depriving prisoners of each others’ countries especially fishermen by not transposing article 10 of UDHR into Consular Access Agreement regarding legal aid, provision of documents of trial proceedings through consular, and appointment of defense counsel by accused persons drifts away the quest for justice that must be edged closer.
Even, state counsel or counsel at the expense of the state of both countries cannot defend a foreigner accused for the cause of justice by arguing in his favor because of the allegation of breaching national security by border violation with the suspect of being a spy or terrorist. In such cases, lawyers are pressured by their governments not to plead such cases on merit and with a professional approach.
Consequently, justice will drift away in the absence of a fair trial opportunity, and a pressure-resistant and professional lawyer of the accused. Thus, the Consular Access Agreement must be revisited with special reference to a “fair trial” opportunity. Both countries should establish a legal panel that should be comprised of seniors from the legal fraternity who will contest cases without any pressure and interference of the state.
No doubt, prisoners are of multiple types such as persons who commit minor offences such as violating unintentionally imperceptible maritime and land borders, and some who commit heinous nature offences such as endangering the national security of other countries like spies, infiltrators, human smugglers, drug smugglers, and terrorists. But the Consular Access Agreement is devoid of such classification of offenders based on the nature of crime and mens rea on which global criminal justice is based for the dispensation of justice in the quest for truth.
This sort of ambiguity and issue of interpretation raised question about consular access to Kulbhushan Jadhav under the Consular Access Agreement. Both countries must develop a consensus that accused of the heinous nature of crimes of both countries must not be treated under this agreement. The Consular Access Agreement must not be derailed by criminals and must be exercised effectively for accused of minor nature offences or who violate undemarcated maritime border so that they could be dealt humanistically. However, criminals must be treated justly irrespective of nationality.
Consequently, the governments of India and Pakistan should revisit the Consular Access Agreement 2008 by making it a more refined legal instrument regarding dealing with fishermen issues differently on humanitarian grounds, providing documents of court proceedings online to lawyers, civil society, and relatives of arrested persons, formation of a legal panel for free legal aid to ensure a fair trial, and revamp the agreement under UDHR as both countries are binding parties to UNO & UDHR. —Concluded.
—The writer is a Lahore-based lawyer of High Court, human rights activist and working on Criminal Justice System of Pakistan.
