Historically speaking, we cannot find an example in the history where prisoners had been released in exchange for their teaching to the children of State of Madinah at the time of Prophet Muhammad (peace be upon him) in war of Badr. The Prophet Muhammad (peace be upon him) further commanded that the prisoners should be dealt in dignity in a 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 prisoner are inhabitant of different culture and environment. Therefore they are habitual of different food, lodging and life style. It has been observed seriously that lack of understanding about other cultures, weather, food and environment also renders physical and psychological support inadequate 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 inapt 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 interpreters, of which they are usually misled by the lawyers into admitting the wrong crime, 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.
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 the International law, we have the Vienna Convention, United Nation’s Convention against 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).
Article 36 of the Vienna Convention on Consular Relations-VCCR, 1963, says that 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.
United Nation’s Convention against torture, 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. According to Principle 14 of Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment says that 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 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, this document lays down certain recommendations that 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 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. 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 hurdle 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, transfer of foreign prisoner 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 Pakistani whom other states had captured and detained.
The author is former judge, lawyer and President of Centre for Rule of Law Pakistan.