Pakistan and India signed an Agreement of Consular Access in 2008 for the purpose of providing reciprocal consular facilities to each other’s prisoners. The leading objective of this legal instrument is to redress the formidable obstacles to protect the fundamental rights of prisoners of both countries confined in each other’s jails through a collaborative approach and sheer determination.
The rights are as providing consular access to prisoners, exchanging lists of prisoners on a defined time, taking care of health, verification of national identity, keeping governments of both countries well-informed about arrested citizens, awarding sentences, repatriation of prisoners who have completed their sentences, examining cases of detention and punishment on grounds of security and politics judiciously, and compassionate and humanitarian treatment of prisoners by working collectively for their repatriation.
No doubt, the agreement addressed a lot of challenges and protected the rights of prisoners in jails of both countries. However, some clauses of this agreement need to be revisited following exponential changes so that the rights of prisoners and their families could be 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 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” opportunities 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.
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, the police or concerned law 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.
I am rendering my free legal services for arrested fishermen in India and Pakistan pm my own expense. 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.
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 parties bound by it.
Article 10 of the Universal Declaration of Human Rights safeguards the right to “fair trial” irrespective of nationality, religion, sect, colour or any other discrimination. Pakistan and India both are signatories of UDHR. However, depriving prisoners of each others’ countries especially fishermen by not transposing article 10 of UDHR into the Consular Access Agreement regarding legal aid, provision of documents of trial proceedings through consular, and appointment of defence counsel by accused persons makes the quest for justice fade away, evn though it must be brought nearer.
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 favour because of the allegation of breaching national security by border violation with the suspect accused 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 offences pf heinous nature such as endangering the national security of other countries like spies, infiltrators, human smugglers, drug smugglers, and terrorists. However. 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 those accused of offences of a minor nature or who violate the undemarcated maritime border so that they could be dealt with 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 parties bound by it.
