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Plight of Foreign Inmates: When Errors becomes Sins |
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Wednesday, 21 May 2008 |
Jatin Desai, Pakistan - India Peoples Forum for Peace and Democracy
Presentation at the International Conference on Access to Justice: Reforms in Criminal Justice System
Karachi, 17th - 19th April 2008
In my presentation, I would like to confine myself to the plights of Indians in Pakistan’s prisons and vice versa. It is a known fact that currently around 500 Indian citizens are in Pakistan’s jails and about the same number of Pakistanis are in Indian jails. Some of these prisoners are languishing in these jails for more than 35 years, without trial. Recently a Hindi film ‘Veer Zaara’ tried to highlight the plight of prisoners in both these neighbouring countries. In this film, Bollywood actor Shahrukh Khan who acted as an official of the Indian Air Force, was arrested under flimsy charges in Pakistan and was not given a free & fair trial. He was helped by a Pakistani lawyer (acted by an Indian actress Rani Mukherjee) who came to his rescue and got him released. The film became an instant hit with the people of both these countries as it projected the friendly bonding of people on both sides of the Line of Control as well as it also highlighted the serious issue of foreign inmates and their helplessness. Needless to say, Pakistani prisoners would get the same treatment in India. But this film does convey a political message: that both the countries give a scant respect to the human rights and human values in dealing with the foreign inmates.
The recent release of Kashmir Singh from Pakistani prison and the staying of execution of Sarabjit Singh in Pakistan have once again brought this issue in public focus. After languishing in Pakistani jail, the 67 years old Kashmir Singh returned to India on 4th March this year and was accorded a heroes welcome in his home city. Mr. Singh was arrested in 1973 in Rawalpindi on charges of espionage and was sentenced to death by the Military Court. Thanks to the intervention of Pakistan’s President Mr. Pervez Musharraf and the Human Rights Minister Mr. Ansar Burney, he was pardoned and finally released. The atmosphere of peace played an important role in giving him a new lease of life. Back home, Kashmir Singh confessed that he was an Indian spy in Pakistan but later he withdrew his statement because of public reactions.
In a friendly gesture, Pakistan has also stayed the execution of Sarabjit Singh for a month. Sarabjit Singh was sentenced to death in 1991 for spying and carrying out four bomb blasts in Pakistan that killed 14 people. He was to be hanged on 1st April this year but the President of Pakistan stayed his execution for a month, till the end of April. However, Sarabjit’s relatives have denied the allegation that he was a spy. They maintain that Sarabjit Singh mistakenly crossed over to Pakistan border and was caught. As the dead line for his execution approaches there would be pressure on the new Pakistani government and the President to give him lease of life. The pressure will be out on the government of India as well to get him released.
Prisoners like Kashmir Singh and Sarabjit Singh’s did generate lots of curiosity, anxiety and public attention. The common people and media of both the countries are now very concerned about the Indian prisoners in Pakistan and Pakistanis in Indian prisons. Despite this the government of both the countries are competing with each other to make the prisoners issue more complex and fluid. A very recent example is the death of a Pakistani citizen, Khalid Mahmood in Indian prison and an Indian prisoner, Laxmsan Manjhi (40) in the Pakistani jail. In fact the Pakistani decision to hang Sarabjit Singh on 1st April was taken in “retaliation” and outrage over the unnatural death of Khalid Mahmood in India. He died on 12th February but his family was informed after 3 weeks, i.e. on 4th March. As per the Indian government’s version, “he was arrested in 1996 with some sensitive documents”. But his family maintained that, “Khalid was not a spy. He had gone to India in 1995 to watch a cricket match and lost his passport. He was then arrested by the Indian authorities.” Immediately after the Khalid incident, Laxman Manjhi, an Indian fisherman died an unnatural death in a Pakistani police hospital on 20th March. The death of these two prisoners created a crack in the friendly atmosphere of both countries and in the efforts of the different peoples’ initiatives which tries to bring peace between the two countries. Unless both the governments become transparent and forthcoming on the issue of prisoners, it would be extremely difficult to have a peaceful solution of the plight of foreign inmates in both countries. If ever such an unfortunate incident happens in either country, the government of that country must commission an independent inquiry and allow an independent committee like the Joint Judicial Committee on Prisoners (JJCP) to investigate such matters. This would help in confidence building measure (CBM) and would also help in saving the lives of the foreign inmates in land of “hostile nations”.
I would also like to draw your attention towards a new phenomenon which has emerged from the recent Sarabjit Singh’s case and that is the issue of execution of foreign inmates. More than 125 countries have either abolished capital punishment or they do not practice it. India and Pakistan are still continuing with the brutal and anti-human system of capital punishment. We need to make an extra effort to mobilise both the governments of India and Pakistan to abolish the practice of execution.
In view of the heightened awareness on both sides about the foreign inmates, I sincerely feel that this is the right time to highlight the plight of Indian and Pakistanis languishing in each other's jails. This is also the time to launch a joint campaign and public mobilization on the issue. The mood in both the countries has also changed substantially, especially with a popular government coming into power in Pakistan.
But who are these prisoners or foreign inmates? We can broadly divide these prisoners into 1) Fishermen; 2) People living in the border areas and mistakenly crossing over to the other side of the border; 3) People who have over stayed; 4) Illegal Immigrants; and 6) Spies. Among them, the last category of foreign inmates, i.e. spies, are the worst affected. Both India and Pakistan send their spies to the other side; but the general public, in both countries, seem to believe that their country does not indulge in spying. But the fact of the matter is that both the countries are involved in espionage in each others territories. But once these spies are caught, they never get a proper legal support in the “enemy” nation and neither would they get a fair trial. But the spy’s family suffers the worst. In most cases, their government disown them and the arrested spy’s family never get the promised compensation.
The other sufferers among the foreign inmates are the fishermen, so far as India and Pakistan are concerned. They venture into the deep sea to catch fish without realizing that they have entered into neighbouring waters. Most of the arrested Indian fishermen are from the coastal Indian states of Maharashtra and Gujarat. These fishermen are poor and use old types of boats to fish. Many of them are not even adults. I know for sure that there are more than 25 Indian fishermen below the age of 18 years who are languishing in the remand homes of Pakistan for more than a year.
It is also important to highlight the living condition of foreign inmates in the “enemy” prisons. The foreign inmates are treated very badly by the native prisoners. Every foreign inmate is considered as a spy by the local inmates and is treated very inhumanly. Their life becomes miserable and they hardly get any cooperation from the prison authorities.
The hostile relation between the two countries is also resulting in strict restrictions being maintained by both countries in issuing city visa rather than visa for the entire country. This also results in arrest of innocent citizens in India and Pakistan when they visit cities for which no visa was granted. I know of a case of a Pakistani family, who came to Delhi on a visa and could not resist visiting Agra to see Taj Mahal. Unfortunately, they were identified and arrested. Indian visitors to Pakistan would love to go to the historical cities like Taxila¸ Mohen-jo-daro and Harappa while a Paksitani would love to visit Agra, Ajmer and other historical and religious places besides visiting their relatives. We need to accept these facts and therefore the visa should be valid for the whole country and not for limited number for cities.
The present arrangement between India and Pakistan on grant of Consular access and the release of each other nationals in their custody is governed by provisions of the Protocol on Consular Access of 2nd November 1982. But most of the time implementation of this protocol takes ages. The 500 odd prisoners from both the countries languishing in each other prisons have mostly not been granted consular access despite prolonged period of being in the prisons. This alarming situation also indicates a necessity of having a new protocol or fresh guidelines to help the foreign inmates. It would be ideal to have a clear cut bilateral policy on this issue as mere guidelines may not help much.
Sometimes prisoners are released when the ground reality of both the countries changes and rulers feel it is to their advantage to benefit from release of foreign inmates. In such cases, prisoners are released with much fanfare and publicity to take political and diplomatic gains. Such events take place once in a while. But we need to accept the fact that fishermen enter into the other country’s waters without realizing it. It is not easy to identify in the sea where one country’s border ends and other's begins. We have to be sensitive to their plight. Only a clear cut policy can rescue such unfortunate victims.
The setting up of a Joint Judicial Committee on Prisoners (JJCP) by both the governments is a welcome step. The JJCP consists of four each retired judges from India and Pakistan. They will be able to visit the prisons of the other country and conduct their enquiries. This is a positive development. So far, one meeting of the JJCP has been held in New Delhi. The second meeting was to be held at Islamabad in the second week of April but unfortunately it was not held. I am of the opinion that they will also think of some mechanism through which all innocent prisoners of each other country can be released as soon as possible. I hope the vast pool experience represented by the members of the JJCP including Justice (Retd.) Nasir Aslam Zahid, will help the JJCP immensely in developing such a mechanism.
Jatin Desai
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INTERNSHIP OPENING AT FOCUS ON THE GLOBAL SOUTH, INDIA |
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