Rights of foreign prisoners in Pakistan

• Domestic and legal frame work

Historically speaking, we cannot find an example in history where prisoners had been released in exchange for teaching the children of state of Madinah at the time of Prophet Muhammad (peace be upon him) after the war of Badr. The Prophet Muhammad (peace be upon him) further commanded that the prisoners should be dealt with in a dignified manner that is appropriate to their social status. During the time of the prophet (peace be upon him) there were no formal prisons; prisoners would be kept in the mosque or distributed among the believers to be kept in their homes.

Geographically, foreign prisoners are inhabitants of different cultures and environments. Therefore they are used to different food, lodging and life style. It has been observed seriously that weather, food and environment cause physical hardship to foreign prisoners.

Due to different territorial jurisdictions and legal systems, foreign prisoners all around the world stand at a risk of having their rights fundamentally violated. Foreign prisoners in particular are more vulnerable to Pakistan’s inept justice system. Whether it is denial of consular access or being exposed to torture and other forms of degrading treatment, foreign prisoners who are arrested on criminal or immigration related charges face a plethora of problems in accessing justice and being repatriated to their home country.

First and foremost, foreign prisoners face difficulty in accessing justice. Due to legislative pieces like section 14 of the Foreigners Act, 1946 they are at a higher risk of getting detained in Pakistan. They are prone to torture due to their different ethnicity and special vulnerability. Foreign prisoners are also at a disadvantage due to lack of understanding of the court and trial process of another country because of which they are usually misled by the lawyers into admitting the wrong crime.

Language is another barrier that foreign prisoners face in Pakistan. Absence of good interpreters renders the prosecution and trial of a foreign prisoner hazardous. It furthers their isolation in an unknown country. Linguistic difference also leads to their exclusion from different vocational and educational programs.

Further, foreign prisoners are often left with only two choices: imprisonment and deportation. Often, the home country does not want to take the prisoner back which leads to his prolonged detention.

Foreign prisoners also miss out on certain statutory freedoms entitled to all the prisoners like parole, temporary release, open prison, remission, educational and recreational program. Lack of shelters and probation services lead to foreign prisoners relinquishing their right to parole, temporary release and transfer to open prisons.

Language is another barrier that foreign prisoners face in Pakistan. Absence of good interpreters renders the prosecution and trial of a foreign prisoner hazardous

Moreover, the religious, dietary, and spiritual needs of a foreign prisoner are often ignored by the prison authorities. Lack of understanding about other cultures also renders psychological support inadequate.

In order to address the rights of foreign prisoners in Pakistan, we need to look at both the international as well as national framework governing their custody and detention. Under international law, we have the Vienna Convention, United Nation’s Convention against torture (UN-CAT), and Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, the UN Model Agreement on the Transfer of Foreign Prisoners and Recommendations on the Treatment of Foreign Prisoners, and the Standard Minimum Rules for the Treatment of Prisoners (SMR).

In accordance with Article 36 of the VCCR, 1963, local authorities must notify all detained foreigners “without delay” of their right to have their consulate informed of their detention. At the request of the national, the authorities must then notify the consulate without any delay, facilitate unfettered consular communication and grant consular access to the detainee. Consuls are empowered to arrange for their nationals’ legal representation and to provide a wide range of humanitarian and other forms of assistance, with the consent of the detainee. Local laws and regulations must give “full effect” to the rights enshrined in Article 36.

United Nation’s Convention against torture, adopted by General Assembly resolution 39/46 of 10 December 1984, is an international human rights treaty that aims to prevent torture and other acts of cruel, inhuman, or degrading treatment or punishment around the world. Article 2, 3, 6, 7, 9, and 13 govern the rights of foreign prisoners who are under detention. Article 2 explicitly prohibits all forms of torture whether in a state of war or a threat of war, internal political instability or any other public emergency. Article 3 protects a person from extradition where there is a real threat that he may be exposed to serious harm in his home country. Article 6 sets forth guidelines for the arrest and detention of foreign prisoners. It allows a state to take a person into custody who is alleged to have committed an offense. Upon making the arrest or bringing the person into custody, he must be facilitated in communicating with a representative of his state or of the state where he usually resides. Article 7 holds that where the State Party does not extradite the person alleged to have committed an offence, his case must be referred to the competent authority, and the same shall be prosecuted in a fair and just manner. Article 9 states that State Parties must assist and facilitate each other in all matters pertaining to criminal proceedings initiated against persons belong to their jurisdictions. Whereas, Article 13 makes it incumbent upon State Parties to promptly and impartially investigate any case of torture that is brought to its notice.

According to Principle 14 of Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, which was adopted by General Assembly resolution 43/173 of 9 in December 1988, a prisoner who does not adequately understand or speak the language used by the authorities is entitled to receive relevant information promptly in a language which he understands.

The Standard Minimum Rules for the Treatment of Prisoners was adopted by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, held at Geneva in 1955. Although it is a non-legally binding document, it offers guidelines with respect to any person held in custody. Rule 38 of the SMR holds that prisoners who are foreign nationals must be allowed reasonable facilities to communicate with Diplomatic Representatives of their State. The UN Model Agreement on the Transfer of Foreign Prisoners and Recommendations on the Treatment of Foreign Prisoners was adopted by the Seventh Crime Congress in Milan in 1985, and later endorsed by the General Assembly in resolution (40/32). This document lays down certain recommendations that must be adopted in relation to foreign prisoners. Accordingly, foreign prisoners should have the same access as national prisoners to education, work and vocational training. They should be eligible for alternative measures to imprisonment according to the same principles as nationals. The religious precepts and customs of foreign prisoners should be respect. Proper assistance should be given in dealings with medical or programme staff and concerning such matters as complaints, special diets and religious representation and counselling. And lastly, contacts should be facilitated between foreign prisoners and their families and with humanitarian international organisations.

Moving on, where a foreign citizen violates Pakistani Law criminal proceedings can be initiated against him. The prime national legislation governing offences related to foreigners is the Foreigners Act, 1946. Section 3 (2) (g) of the Foreigners Act allows the federal government to make orders with respect to the arrest of foreigners. Any foreigner who is detained or confined shall not remain in detention for more than a period of two months without the authority of a board which must comprise of judges of the Supreme Court. Section 14 B of the Foreigners Act allows the federal government to deport any person whose stay has been determined illegal, provided his presence is not required in connection with any other case. Under Section 14 C of the Foreigners Act, a foreigner who has been convicted and sentenced for illegal stay in Pakistan shall not immediately be released on the expiry of the sentence. He shall continue to remain in custody till arrangements for his deportation has been finalised, and this period must not exceed three months. Whereas, Section 14 D of the Foreigners Act permits any foreigner who has no permission to stay in Pakistan to register itself with the Aliens Registration Authority, and this must be done immediately before the commencement of the Foreigners (Amendment) Ordinance, 2000. Once the foreigner is registered, the Authority may permit him to work in Pakistan in accordance with their terms and conditions.

Further, the Pakistan Prison Rules, 1978 sets out rules for the jail authority for the treatment of foreign prisoners in jails. Rules 36 provides benefits of undergoing sentences for foreign prisoners and rules 74 and 1242 protect the belonging of foreign prisoners and Rules 829 (ii) prohibits foreign prisoner to work and be employed outside the prison. In a similar way rules 260 and 467 lay down the dietary meal for foreign prisoners.

In view of the above, all stakeholders and concerned person must strive to ensure a foreigner’s access to justice. The police, lawyers, and relevant ministries must work together to remove any hurdles a foreign prisoner may face. The embassies should set a help lines in the jail and court rooms for the foreign prisoner’s as the Embassies are the first point of contact for a foreigner .The criminal procedure code should mildly be amended to serve notice to relevant embassy at the time of arrest of a foreigner, so the legal assistance should be ensured to foreign detainee. There must be a monitoring team voluntarily working with the embassies to provide information and legal assistance to foreign prisoners. The government of Pakistan, ministry of foreign affairs and foreign law enforcement community (FELC) should set up a compliance and enforcement committee for foreign prisoners.

The committee can negotiate international laws and treaties compliance and enforcement for foreign prisoners and can propose amendment for early release of foreign prisoners by paying ransom in lieu of imprisonment, bilateral treaties on foreign prisoners by giving waiver in punishment particularly in minor offences in exchange for a number of Pakistanis whom other states have captured and detained.