There have been reports that Pakistan is considering signing the Council of Europe Convention on the transfer of sentenced persons. Media reports suggest that the spadework has already been done.
The reason for such swiftness is to secure the transfer of certain detainees from the US to Pakistan who have been convicted under the American law and are currently serving jail time.
Yet it must not be forgotten that the said convention is a two way street: Pakistan will have to release certain high profile prisoners to other countries as well.
It appears that the ramifications of ratifying this international instrument are hardly appreciated by those at the helm of affairs. Since the lack of understanding permeates the civil society as well, there is no debate over the pros and cons of ratifying the treaty.
Conventions, like other international law instruments including treaties, are binding agreements between independent states. Once signed and ratified, they become mandatory and if not followed, can have repercussions in relations with international community.
In non-legal parlance, if two states are signatory to this convention, then either the sentencing state (where the sentence was awarded), or the administering state (the state of which the prisoner is a national), will be entitled to request that the prisoner may be transferred to the state of which the prisoner is a citizen. This is suggestion is in accordance with the principle of human rights because it ensures that a convict is able to spend time at a jail in familiar conditions. There are currently 64 states who have signed and ratified this Convention. The United States of America has been a signatory since the institution of this convention. India is not a signatory.
According to the Council of Europe, this Convention is primarily intended to facilitate the social rehabilitation of prisoners by giving foreigners convicted of a criminal offence the possibility of serving their sentences in their own countries. It is also rooted in humanitarian considerations, since difficulties in communication by reason of language barriers and the absence of contact with relatives may have detrimental effects on a person imprisoned in a foreign country.
Once a sentenced person has been transferred to the country to which he belongs, that is where his fate will be decided.
There are some general guidelines which establish broad principles; for example, that a jail sentence cannot be converted into a fine, and that a harsher punishment cannot be awarded to the sentenced person upon arrival in the administering state. However, other than these policy guidelines, it is for the administering state to decide how to handle the transferred prisoner.
Therefore, if a Pakistani prisoner is transferred to Islamabad, the federal government or any competent authority as established by law after signing of the instant convention, will be entitled to award a lenient punishment or even do away with the imprisonment altogether.
This clearly shows that by signing the Convention, Pakistan will be exposing itself to a double edged sword. On the one hand, it will be prone to internal pressures wherein the government may be forced by pressure groups to request transfer of prisoners who may be a threat to the security of Pakistan and its people, and once they land in Pakistan, their sentences, could be potentially reduced or abolished, again under immense pressure from unscrupulous elements. On the other hand, history tells us that in most instances, Pakistan is unable to withstand international diplomatic pressure, and it is likely that it will have to transfer prisoners who have worked against the national security of Pakistan. Finally, in the event that a person is convicted of heinous crimes whether in Pakistan or abroad, and his sentence is reduced or eliminated, then the same could potentially violate the principles of Sharia.
All in all, the Convention on Transfer of Sentenced Persons is a balanced statute and is enacted in good faith. Of course in a dysfunctional state like Pakistan, even an excellent piece of legislation, has potential of abuse, especially when the country is dealing with extreme internal security threats.
International treaties and conventions should be signed after carefully studying their long term impacts. When ratifying an international instrument, it is the honor and dignity of Pakistan which is at stake.
n The writer is a lawyer.