SAILING the seas in fragile boats to earn a day’s living is no easy task. A fishworker, whether in Pakistan or across the border, is exposed to great vulnerability and marginalisation. Fishworkers’ communities live in coastal areas where they are affected by the degradation of the ecosystem. Their situation becomes worse when they find themselves arrested and are incarcerated in prisons across the border for years on end. One storm over invisible maritime borders is all it takes for a person to be captured and thrown into prison in an alien country.
It was estimated that 654 Indian fishworkers were incarcerated in Karachi’s Malir Jail; 631 arrested fishworkers had already completed their sentences and their nationality had been verified. Meanwhile, 83 Pakistani fishworkers are detained across the border in Indian jails; many of them have completed their sentences, and their nationality, too, has been verified. This information is contained in a joint letter released by the National Fishworkers Forum and the Pakistan-India Peoples’ Forum for Peace & Democracy.
It is often said that hope dies last; one cannot lose hope, for if you lose hope, you lose everything. But Pakistani fishworkers languishing in jails across the border for a number of years, had lost all hope. However, with Foreign Minister Bilawal Bhutto-Zardari’s recent visit to Goa for the Shanghai Cooperation Organisation meeting, this lost hope might be reignited. For the visit prompted the release of several Indian fishworkers from Pakistan’s prisons as a gesture of goodwill.
Of the 654 Indian fishworkers mentioned, Pakistan released the first batch of 198 fishworkers on May 11, 2023. The second batch of 200 fishworkers was released on June 2, 2023. A third batch will be released next month.
The Agreement on Consular Access came into force on May 21, 2008, with the objective of ensuring humane treatment for the nationals of both India and Pakistan, who had been arrested, detained, or imprisoned in the other country and for them to have reciprocal consular facilities. Section 5 of the agreement reads: “Both governments agree to release and repatriate persons within one month of confirmation of their national status and completion of sentences.”
Moreover, the Vienna Convention on Consular Relations (ratified by Pakistan in 1969 and India in 1977) mandates via Article 36 that the country’s consular post must be informed if one of its citizens is detained, in custody, or arrested, “without delay”, and that the prisoner be informed of his/her legal rights.
Further, the UN Convention against Torture (which India has not ratified but Pakistan did in 2010) mandates that under Article 6 “any person in custody … shall be assisted in communicating immediately with the nearest appropriate representative of the state of which he is a national” and that when a state “has taken a person into custody, it shall immediately notify the states … of the fact that such person is in custody and of the circumstances which warrant his detention”.
Moreover, the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment and the Model Agreement on the Transfer of Foreign Prisoners and Recommendations for the Treatment of Foreign Prisoners provide important principles and guidelines for the protection of persons under detention or imprisoned in a foreign country.
The national framework regarding the regulation of the entry, movement and removal of foreigners in Pakistan is governed by the Registration of Foreigners Act, 1939, the Foreigners Act, 1946, and the Registration of Foreigners Rules, 1966. Across these laws and rules, a foreigner is defined as “a person who is not a citizen of Pakistan”.
We await a world where humanity, kindness and goodness reign supreme. Why must our marginalised communities continue to suffer when their anguish can end with the simple decision of releasing them from captivity? Why hold someone a prisoner, only because they sailed across the seas to earn their livelihood one tragic day?
Pakistan’s gesture of goodwill of releasing the fishworkers is a step in the right direction. A shimmering light has been lit for the fisherfolk community in both countries. India must reciprocate by releasing Pakistani fishworkers languishing in Indian prisons.
At the same time, it is important to highlight that it is not enough to have one-off occasions where fishworkers are released and sent home. Rather, the national and international legal framework must work in a systematic and coordinated manner to ensure that nobody languishes in jails across the borders because they had inadvertently found themselves in the other’s territory.
The writer is a barrister of Lincoln’s Inn and an advocate of the high courts of Pakistan
Published in Dawn, June 15th, 2023 by Rida Tahir