A worthy cause

October 18, 2015

Our failure to provide legal assistance to citizens detained abroad

A worthy cause

Eight thousand, five hundred and ninety-seven (8,597): that is the number of Pakistani citizens detained abroad -- this number is based on official figures reported by our government. Almost 49 per cent of these are locked up in countries in the Middle East. Justice Project Pakistan (JPP) reports that in 2015 alone, there have been 17 executions of Pakistani nationals in Saudi Arabia. These are not just statistics. These are human beings, like you and me, with families and loved ones. And these are people who have been largely abandoned by Pakistan.

In countries, where the death penalty is administered, this abdication of responsibility by the state assumes a particularly gruesome hue. As per reports, in an overwhelming number of cases, no consular access is provided to the detained Pakistani citizens. In a number of cases, the families of those Pakistani citizens who are executed abroad have not been provided the dead-body for burial.

This is not just morally wrong but also violates the applicable tenets and principles of international law. There is also a domestic law issue here so let’s identify the relevant questions:

Are foreign states (where Pakistani citizens are detained/arrested, prosecuted, convicted) under an obligation to notify Pakistani consular staff and provide our diplomats access to our citizens?

Is Pakistan under an obligation to protect rights of its citizens detained/arrested, prosecuted or convicted abroad?

For purposes of illustration, let’s take Saudi Arabia as an example of a "host" state or "receiving" state. It is a signatory to the Convention and so is Pakistan. The Vienna Convention on Consular Relations (1963) binds host states to allow consular access to detained foreign nationals (i.e. Pakistanis in this case). In fact, Article 36 of this Convention places a burden on a host state  to inform "without delay" the consular staff of the sending state (Pakistan) of the fact of detention of any Pakistani citizen. In fact, one could argue with force that the right of consular staff of a state to be allowed access to its citizens detained abroad is recognised under principles of customary international law as well. It appears that KSA consistently violates its obligations under the Vienna Convention and, to make matters worse, our state and government have accepted these injustices as a matter of practice.

The Kingdom’s failure, or refusal, to inform our diplomatic staff of arrests, convictions or executions of Pakistanis will not be effectively challenged till Pakistan asserts the rights of its citizens. In a 2004 case titled Mexico v United States, the International Court of Justice (ICJ) found the US in violation of its obligations under the 1963 Vienna Convention since the US failed to inform "without delay" Mexican consular staff of the fact that Mexico’s citizens were detained and subsequently put on death row.

This is just one precedent where a state spoke up for the rights of its citizens. There is nothing in international law that stops Pakistan from standing up to any country for the sake of its vulnerable citizens -- but the politics of the issue result in a complete surrender by Pakistan.

More than 2 million Pakistanis, since 1981, have proceeded abroad as migrant workers. More than 50 per cent of them work in the Middle East, and an overwhelming majority of this number works in Saudi Arabia. Essentially, Pakistan turning a blind-eye to arrests, convictions and executions of its citizens in these states means that all Pakistanis working abroad are vulnerable. Our politicians love championing these migrant workers’ contributions in terms of remittances but Pakistan has no qualms throwing these citizens at the mercy of the relevant foreign states -- many of which are monarchies/dictatorships.

Notwithstanding this, and regardless of the nature of alleged crimes, all accused are entitled to a fair trial and proper defence. We will never know how many of our fellow citizens could have been saved with proper legal advice or more effective legal representation.

The violations by other states of the rights of our citizens must be raised by Pakistan at all relevant international forums -- including the International Court of Justice.

Coming to the other question: does Pakistan have a legal obligation to protect its citizens detained abroad and/or provide them assistance (including legal assistance)? There is of course a moral argument to be made here as well and it is surprising how few have made it in support of our vulnerable citizens abroad. And as far as legal arguments go, one can use Article 4’s promise of a citizen being treated in accordance with law "wherever he may be" to call on the state to provide assistance to citizens detained abroad. The word "law" in this Article should not exclude recognised principles of international law. In 1969 Pakistan passed domestic legislation that ratified the 1963 Vienna Convention. It is also worth noting that courts in the UK have held that the UK citizens detained abroad have a legitimate expectation of receiving consular assistance. The UK government for the most part has treated consular assistance to citizens detained abroad as a matter of administrative discretion. However, the UK courts have held that the exercise of such discretion can be judicially reviewed.

Hence, we in Pakistan can use the UK case-law to argue that the state’s failure or refusal to provide legal assistance to citizens detained abroad violates fundamental rights of citizens, as well as Article 4. For instance, Pakistan aggressively tried to ensure consular access to Zaid Hamid. I wrote in defence of his free speech rights in this very space but there is no reason why he or anyone else deserves special treatment. We must not allow our state and government to discriminate, without any lawful basis, between citizens detained abroad.

The only way to stop this injustice is to exert pressure, legal and political, on the government.

These arguments have not been made in any powerful way up till now but this might change soon. Justice Project Pakistan has filed a petition before the Honorable Lahore High Court challenging the Federation’s inaction and pure apathy to the suffering of its citizens detained abroad. It appears that the only reason Pakistan is not asserting itself for the protection of its citizens is the politics of its relationship with foreign states.

No legal justification exists for our inaction and the suffering of our citizens. The only way to ensure that our government cannot look away from this issue is to make it impossible for it to do so. Raising our voices now will go a long way towards this worthy cause.

A worthy cause