Below, my article on the India-Pakistan prisoners issue published in Aman ki Asha on Jan 11, 2012, followed by a correction from Sen. Iqbal Haider and further clarification from B.M. Kutty. Also please do read Shivam Vij’s thought-provoking and thorough report ‘Why is Gopal Das free and not Dr Chishty?‘, published in Aman ki Asha, and Anahita Mukherji’s report in The Sunday Times of India about how the Indian prisoners were treated in Pakistan (surprisingly well) – Warm memories of time in Pak jail.
Looking a New Year gift horse in the mouth
Pakistan’s release of 183 Indian prisoners on Jan 7, 2012 is a welcome step but it also highlights the ongoing issues faced by cross-border prisoners
By Beena Sarwar
On January 8, 2012, 183 Indians crossed the Wagah border from Lahore, bundled up against the bitter cold, many in shawls gifted to them in Pakistan, eager to return home after being released from Pakistani prisons.
Much hard work, persistence and the humanitarian view taken by the Lahore High Court lie behind their release, termed “a New Year gift” from Pakistan to India.
The story of this particular prisoner repatriation started in October 2011, when advocate Awais Sheikh filed a writ petition before the Lahore High Court seeking the release of two Indians, Satinder Paul and Karale Bhanudas, who remained in Pakistani prisons despite having completed their sentence.
On the Lahore High Court’s order to provide details on foreign nationals held in Pakistani prisons, Superintendent Jail submitted a list of 74 foreign nationals in prison, including 33 Indians, who had completed their terms of imprisonment.
Chief Justice of the Lahore High Court Ijaz Ahmed Choudry in his order of Nov 14, 2011, directed the release the two prisoners on whose case the petition was based, as well as all foreign prisoners who had completed their terms.
Pakistan’s Ministry of Foreign affairs cleared six Indian civilian prisoners for release. However, two of them, Sakhi Muhammad and Bhavesh Kanti Parmar, were not released for “unknown reasons”, says Awais Sheikh.
On Jan 7, 2012, Pakistan released 183 Indian prisoners, including Satinder Paul Singh, Sanjeet Kumar, Nasim and Sama Yousaf, and 179 Indian fishermen. They were brought to Wagah border on Jan 8th morning. The First Secretary of Indian High Commission along with three other ICH officers and an officer of Pakistan’s Interior Ministry, Islamabad, were also present.
It took them five hours at Wagah to complete the legal formalities at Customs, during which time advocate Awais Sheikh also remained with them. They finally crossed the border at 6.00 p.m.
“It was an unforgettable scene,” says Sheikh. “I bid them a hearty farewell with my best wishes. My apologies to them all for being kept in jails even after the completion of awarded sentence. I wish that sanity would prevail and I pray that my voice reaches the governments of both countries”.
There are still 276 Indian fishermen in Pakistani jails. “Of these, 83 have already served their sentence but cannot be released because Indian authorities have not confirmed their nationality,” explains Justice Zahid. Foreign prisoners can only be freed after respective embassies confirm their identity.
This is also the case in India, which currently has 440 Pakistani fishermen in custody, according to former Pakistan law minister Iqbal Haider. He says that the nationalities of 285 of these prisoners have been determined, but “no assistance can be provided to the remaining 164 until their citizenship is established.”
Officials at India’s Ministry of External Affairs (MEA) say that India and Pakistan don’t want to detain fishermen from the other country. “Once they cross the border, the legal process begins. The process of verifying nationalities involves visiting a fisherman’s village to confirm his identity. Often the addresses given are incomplete or very remote. It may take a long time to get there,” said an MEA official.
But rights activists say that this verification process, which takes six months to a year, only starts after the prisoners have completed their terms.
The process of verifying a prisoner’s nationality should begin the moment he is arrested by India or Pakistan. “The process should be complete at the time of a prisoner’s release so he does not remain in jail after serving his sentence,” says Jatin Desai.
Justice Zahid blames both countries for the delay in releasing innocent fishermen who inadvertently cross national borders while fishing. “These fishermen are usually given a six-month to a year’s jail sentence. By the time they are sentenced, they have already served the term,” he maintains. “If both governments show interest, the process could be completed in less than a month.”
Both the Indian and the Pakistani Supreme Courts have ruled that keeping a prisoner even for a day after he completes his jail term is illegal.
Iqbal Haider has appealed to the Pakistani and Indian governments to release all foreign prisoners over 60 years of age, and to expedite their respective trials by providing them with legal facilities.
Until such steps are not implemented, the issue of cross-border prisoners will remain unresolved. In humanity’s name, if not to gain the goodwill of thousands of affected people, both governments must cut the bureaucratic red tape and existing, outdated protocols – the sooner the better.
Both countries routinely arrest each other’s fishermen for transgressing maritime boundaries. Released fishermen are routinely repatriated via Wagah border, from where they have to make the tedious overland journey home.
“Gujarat and Karachi are so close to each other, and yet Gujarati fishermen released in Karachi have to travel all the way to Wagah border, and then from Amritsar to Gujarat. Many are from remote villages, and it takes even longer to reach,” says senior Mumbai-based journalist Jatin Desai, who is joint secretary, Pakistan India People’s Forum for Peace and Democracy. “Why should they not be sent back by sea, along with their boats?”
Around 481 Indian fishing boats lie rotting in Karachi harbour. “Each boat costs around 30-40 lakh Indian rupees. Most fishermen are very poor and an entire fishing village chips in to buy a boat,” observes retired Supreme Court of Pakistan Justice Nasir Aslam Zahid.
Justice Zahid, chairman of the Committee for Welfare of Prisoners and a member of the Indo-Pak Joint Judicial Committee comprising eight retired judges – four each from India and Pakistan examining the issue of cross-border prisoners – points out that “even if both countries release all the captive fisherfolk, others will continue to be arrested.”
He suggests setting up a joint committee of officials from India and Pakistan stationed aboard a ship between the two countries to decide cases of fishermen accidentally straying across the maritime border. “The matter can be settled in the sea itself.”
Pakistan Fisherfolk Forum President Muhammad Ali Shah, hoping that India will also release the Pakistani fishermen in Indian jails, suggests that both countries should allow each other’s fishermen to catch fish at a small scale in 50 nautical miles in other’s waters, rather than criminalising this transgression.
A year ago, India and Pakistan agreed to set up a task force with two members each from Pakistan and India to improve the situation. “Pakistan has already nominated its members but India is yet to do so,” says Jatin Desai.
Indian and Pakistani peace activists in a joint press statement of October 2011 had urged their governments to release the fishermen and their boats. Both governments “need to recognise the fact that these traditional fishermen go to the mid-sea for their livelihood. Arresting them and confiscating their boats means depriving their families from the livelihood, and causing them extreme distress,” said the statement… “The issue of fishermen needs to be seen from the humanitarian, not security angle.”
Not included in the list of prisoners to be released were the two Sikh prisoners. One of them is Sarabjit Singh convicted for bomb blasts in Pakistan in 1990 even though the FIR does not mention his name but that of a Manjeet Singh (Surjit Singh says he is the victim of a mistaken identity; see report ‘Why is Gopal Das free and not Dr Chishty?’ by Shivam Vij). The other prisoner, who has languished for four decadese, is Surjit Singh, a jawan of India’s Border Security Force (BSF), taken prisoner of war in 1971 and given up for dead in 1974. In April 2011, he was found to be alive, in Kot Lakhpat Jail, Lahore, after Khushi Mohammad, an Indian prisoner released by Pakistan on his return mentioned the names of some of his compatriots still in Pakistani prisons.
Both Sarabjit and Surjit have now spent decades in prison, far beyond life imprisonment terms. Pakistan must repatriate them immediately, as human rights activists and lawyers on both sides are demanding.
In addition, both countries must look into the issue of the ‘forgotten’ prisoners of war.
In June 2011, Brian MacMahon, a former master mariner from India, now based in Australia, appealed to the Presidents of India and Pakistan to make efforts to locate and release the POWs on either side, and if they were no longer living, to provide information and their remains to their families in order to get some closure on their missing loved ones.
‘Missing’ Indian POWs who have been ‘sighted’ in Pakistan over the years include Major S. P. S. Waraich , Capt Kamal Bakshi, Subedar Assa Singh, and Wing Commander H. S. Gill. The ‘discovery’ of Surjit Singh ignites hope that they and their other colleagues may similarly be alive and undocumented in a Pakistani prison.
In September 2004, then Defence Minister of India, Pranab Mukherjee told reporters that an estimated “17 army officers, two junior commissioned officers and 19 other rank officers are currently in Pakistani jails.”
There are Pakistani POWs in India too. In June 2010, The Daily Mail Today, New Delhi, reported that 18 Pakistan Army personnel taken as prisoners of war in 1965 and 1971 were still in Indian custody, as confirmed by the Indian Ministry of Defence. This is “contrary to all norms of humanity as well in direct contravention of the Geneva Convention… these POWs also include two Majors who went missing during the wars” (June 24, 2010).
Given the number of cases where missing presumed dead armed forces personnel have been found alive in one prison or another, isn’t it time for both countries to make concerted efforts to get these men back – if for no other reason, then in the name of humanity?
Update – with apologies for the oversight, which was entirely inadvertent – I wrote the piece using the most recent accounts at hand.
Jan 14, 2012: From Senator (R) Iqbal Haider, Senior Advocate Supreme Court
I hope you would not mind, my adding to your information that it was in pursuance of the Orders passed by the Supreme Court of Pakistan in the Constitution Petition No.48/2010 filed and conducted by me, “pro bono”, on or about 30th July 2010, on behalf of Pakistan Fisherfolks Forum and PILER that the Supreme Court had ordered that all cases of fishermen crossing the border should be heard expeditiously, preferably within a period of six weeks and that all the prisoners under the Foreigners Act should be released and repatriated forthwith, if they have completed their sentences. In pursuance of these Orders of the Supreme Court more than 442 Indian fishermen prisoners were released and repatriated in one go.
This has started the process of further release of large number of Indian prisoners from Pakistan and Pakistani prisoners from India.
When our delegation comprising Mr. Kuldip Nayar, Mr. Mahesh Bhatt and Mr. Jatin Desai from India and Mr. Justice Nasir Aslam Zahid, Mr. Karamat Ali and the undersigned from Pakistan were received by Mrs. Soniya Gandhi, the Head of Ruling Congress Party, on or about 9th September 2010, to reciprocate our efforts for release of Indian fishermen, Mrs. Gandhi was kind enough to immediately order release of all Pakistani Prisoners who have completed their sentences and if their nationalities have been identified. As a result hundreds of more prisoners of the two countries have been released since then.
The recent release of 179 Indian Fishermen from Malir Jail Karachi was consistently pursued with Pakistani authorities by our team of Mr. Justice Nasir Aslam Zahid, Mr. Karamat Ali, Mr. Mohammad Ali Shah of Fisherfolk and the undersigned. It was due to the consistent efforts of this team that these prisoners were finally released on 7th January’ 12 from Malir Jail Karachi. Any proceedings in the Lahore High Court were not instrumental in release of these Indian Fishermen from Malir Jail Karachi.
I do sincerely appreciate and admire efforts of all members of the Bar or members of the civil society for putting hard work persistently for release of the prisoners as well as for much needed improvements in the relations between our two countries. Warm, cordial, peaceful and open border relations between Pakistan and India is the need of the people of this subcontinent.
The aforesaid is just to put the record straight.
Jan 14, 2012: From B.M.Kutty, Secretary General, Pakistan Peace Coalition (PPC), PILER Center, Karachi:
Dear Iqbal Haider Saheb,
Thank you very much for clarifying how the process of release of India-Pakistan fishermen by the two governments started and how it is still going on, thanks to the untiring efforts of rights activsts like you, Justice Nasir Aslam Zahid, Muhammad Ali Shah, Karamat Ali and others. . Let us also remind ourselves of the fact that PILER and PFF had been involved in it since 1997 when the first batch of about 500 plus fishermen were released from both sides. Unfortunately, the seemingly unstoppable exercise of arrest and release of poor fishermen on both sides goes on and on. God save the fishermen!!
Filed under: Pakistan-India Tagged: | B.M. Kutty, Brian MacMahon, Fisherfolk Forum, fishermen, India, Iqbal Haider, legal aid, Nasir Aslam Zahid, Pakistan, pows, prisoners, Sarabjit Singh, Surjit Singh