GVS Special Report |
On the 8th Session of the National Assembly Secretariat in 2014 during the “QUESTIONS FOR ORAL ANSWERS AND THEIR REPLIES”, the minister of foreign affairs revealed that the total numbers of Pakistanis who are arrested/detained in various countries were 7,016 and it has been increased since then. Nearly 4,000 Pakistanis are held in Saudi Arabia and UAE prisons on different charges.
The issue regarding Pakistani Prisoners was raised in the Senate of Pakistan under “REPORT OF THE SENATE STANDING COMMITTEE ON OVERSEAS PAKISTANI AND HUMAN RESOURCES DEVELOPMENT”. Senator Sehar Kamran raised the issue of Pakistani Prisoners detained in Saudi jails. She stated that some of the female Pakistani prisoners have even given birth to children during detention and they are still in jail. A sub-committee was constituted to probe into this matter but the report of the committee was never highlighted.
The Pakistan Diplomatic and Consular Privileges Act 1972, has given effect to certain provisions of the Vienna Convention on diplomatic Relations 1961 and the Vienna Convention on Consular Relations, 1963. Article 5 of the Act explains the “Consular Functions”, which includes “protecting in the receiving state the interests of the sending state and its nationals, both individuals and bodies cooperate, plus helping and assisting them”.
The Supreme Court of Pakistan has been approached by families of Pakistani Prisoners abroad and Welfare Society for Overseas Pakistani Rights for the protection of the Fundamental rights of the Pakistan.
The Pakistani prisoners who are detained abroad have the same main complain to the Pakistani Government which is that they are not given any assistance or help from the Pakistani Consulate, and that during their whole trial in the foreign judicial system, they face many judicial irregularities, which cost them deprivation of the right to a fair trial. They are forced to confess many statements, which never turn out to be accurate due to the language barrier. During their trial in foreign countries, the Pakistani prisoners abroad send many requests to Pakistani authorities for basic assistance in translating language but they are never offered any assistance.
Once they are convicted from the highest court of the foreign judiciary, their judgments are sent to their family in Pakistan through private sources, for understanding the case against them. Such requests are sent to the Ministry of Foreign Affairs in Pakistan for “English Translation of Foreign Legal documents“, but are always refused by the Ministry. The reason they give is that translation of legal documents involves financial cost, for which this office does not have provision, so the subject documents may be translated from professional translators available in the market.
Pakistan Consulate’s websites abroad are completely silent on how to deal with Pakistani prisoners detained abroad and what procedure needs to be followed. Even if you visit FEDERAL OMBUDSMAN OF PAKISTAN website, they have referred the matter of Pakistanis detained abroad to the Foreign Ministry of Pakistan.
Article 36 of the Vienna Convention on Consular Relations 1963, which has not become municipal law of Pakistan under Diplomatic and Consular Privileges Act, 1972, states that “when a national of a foreign country is arrested or detained on criminal or immigration charges, the detainee must be advised of the right to have the detainee’s consulate notified, and that the detainee has the right to regular consultation with consular officials during detention and any trial”. A number of countries law enforcement agencies implement these requirements through rules, regulations or policies. The government of Pakistan has not made this article as municipal law of the land yet and has not passed any legislation or drafted policy for the welfare of the Pakistanis detained abroad.
The United Kingdom Foreign and Commonwealth Offices are placed in all UK Embassies and Consulates around the globe. They contain the “Information Pack for British Prisoners Arrested and Imprisoned in Thailand”.
The Supreme Court, in its hearing on 20th May 2010, directed that “The Government makes vigorous efforts and arrangements to provide all necessary assistance (including legal aid and payment of fines) for securing the release and repatriation of the Pakistani nationals detained/imprisoned abroad. It also directed that a special cell be established in the Ministry of Foreign Affairs and a special inter-ministerial Committee at joint Secretary Level, comprising of Ministry of Interior, Finance, Law and Justice, Human Rights and Foreign Affairs be constituted to deal with these issues on a most expeditious basis”.
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The government of Pakistan instead of formulating a comprehensive policy on this August court direction only drafted “Guidelines For Streamlining the Institutional Mechanism For Implementing the Directive of the Honorable Supreme Court On Securing Release And Repatriation Of Pakistani Detained/Imprisoned Abroad”. These guidelines have no force of law and they are just an artificial cover the government has tried to use to satisfy the honorable court direction. This is complete non-appliance of the court direction and hence a violation of the direction.
The Transfer of Offenders Ordinance, 2002 (XXXVII of 2002) was promulgated to provide for the transfer of a citizen of Pakistan convicted of an offence in a foreign country to Pakistan and a citizen of foreign country convicted of an offence in Pakistan to that country. Where an agreement for mutual transfer of offenders has been entered between Pakistan and any specified country, whether before or after the commencement of this ordinance, the competent authority shall declare that the provisions of this Ordinance shall apply in respect of such country.
Pakistan is a signatory to over 27 countries on Transfer of Offenders Ordinance. This is amnesty given to Pakistani prisoners abroad to spend the rest of their punishment time in Pakistani prisons. This amnesty had given relief to many Pakistani prisoners abroad before 2015. The Interior Ministry on 16th March 2015 through Notification NO.6/52/2015 Law has stopped the processing of all cases of Transfer of Offenders in order to evolve a transparent framework and SOPs with the consensus of all stakeholders, on account of reported malpractices in the prevalent process.
The people under the statute have been denied since March 2015 with unreasonable excuses. This absurd delay on the Pakistan side is making Pakistani prisoners suffer immensely.
Just due of one incident on prisoners exchange, the operation of this abovementioned law has been suspended and thousands of Pakistani Prisoners aboard who were eligible according to foreign law to be transferred to Pakistan are delayed in abeyance. This amnesty ends up being of no use.
The question here is “whether a legal right established under a statute can be denied due to non availability of transparent framework and SOPs?” The Standard Operating Procedures (SOPs) are internal documents and its non-availability could not form the basis of refusal of legal right under a statute for inordinate delay.
The people under the statute have been denied since March 2015 with unreasonable excuses. This absurd delay on the Pakistan side is making Pakistani prisoners suffer immensely. Pakistan is a signatory of the Transfer of Offenders Agreements with many countries, and over thousands of Pakistani offenders in such countries are eligible to be transferred to Pakistani jails.
The United Kingdom Foreign and Commonwealth Offices are placed in all UK Embassies and Consulates around the globe. They contain the “Information Pack for British Prisoners Arrested and Imprisoned in Thailand”. Their main duties are to provide help and offer advice to any British National who gets into difficulties in a foreign country. They make sure that you are treated properly and fairly in accordance with local regulations, and that you are treated no less favorably than other prisoners.
There is no such office exit in any Pakistan Embassies or Consulate Abroad; instead the prisoners have complained that some officers demand bribes in order to forward their situation or status in Jail to the relevant Pakistani Authorities. Pakistani’s imprisoned in foreign jails are deprived of there basic fundamental rights due to three reasons.
Pakistan is a signatory of the Transfer of Offenders Agreements with many countries, and over thousands of Pakistani offenders in such countries are eligible to be transferred to Pakistani jails.
Firstly, due to Pakistan Government non compliance on Vienna Convention on Consular Relations through Pakistan Diplomatic and Consular Privileges Act 1972. Secondly, due to non-implementation of Supreme Court of Pakistan’s direction in its hearing dated 20th May 2010. There is no comprehensive policy has been drafted while carrying out the direction of the honorable Supreme Court. Thirdly, The Transfer of Offenders Ordinance, 2002 (XXXVII of 2002) operation has been suspended since 2015 due to non-availability of the transparent SOPs. Due to all three reasons, the Pakistani prisoners abroad are getting increasingly deprived and have been left with no help by the Government of Pakistan.
The Supreme Court of Pakistan has been approached by families of Pakistani Prisoners abroad and Welfare Society for Overseas Pakistani Rights for the protection of the Fundamental rights of the Pakistan jailed abroad but changes have been made to solve these issues as of right now.