Consular protection

Published December 18, 2020
The writer leads the litigation team at Justice Project Pakistan.
The writer leads the litigation team at Justice Project Pakistan.

TODAY, on International Migrants Day, we must reflect on the 10 million Pakistani citizens living overseas — Pakistanis who need their government’s assistance when encountering situations occasioning distress, such as accidents, illnesses, natural disasters or legal trouble. The mechanism for providing this key service is through consular protection regimes that a government establishes to support its citizens abroad.

A much-needed direction in this regard was given by the Supreme Court to the government to come up with a comprehensive regime in 2010, yet despite their efforts the Lahore High Court in 2017 deemed their response inadequate.

While these rights are due to every citizen, consular duties owed to overseas Pakistanis are heightened when their life and liberty are at stake. The PTI manifesto explicitly guaranteed that this government would “provide consular and legal services to all Pakistanis jailed abroad”. The recognition of this important duty is commendable, and bears testament to the government’s understanding of the inalienable nature of a citizen’s right to due process and, therefore, consular protection, “where ever he may be”. It is time to turn this conviction into implementation, and to ensure that the ongoing breaches of Article 4 of the Constitution, quoted above, are mitigated.

Article 4(1) creates a legitimate expectation that the government must consider making a representation on behalf of a Pakistani national who has suffered a miscarriage of justice or whose fundamental rights have been violated to alter the course of justice. However, this is impossible to do unless a consular officer has access to the overseas prisoner, and in the event that they do have access, lack of comprehensive and effective procedures to safeguard their interests result in such efforts remaining inadequate.

Pakistan needs a policy to aid citizens imprisoned abroad.

In order to combat these problems, the government must utilise and seek enforcement of the Vienna Convention on Consular Relations, 1963, and pass a comprehensive consular protection policy to guide their officers. The VCCR defines a framework for consular relations between independent states. Once a state signs on to the VCCR, the convention takes the force of a consensual bilateral treaty/agreement, and they become bound by it under international law. The rights provided for in the VCCR are not subject to local laws and regulations, and hence must be followed in letter and spirit by governments acting as mutual signatories to it.

Pakistan is among the 180 nations that have ratified the VCCR, and as all Gulf countries have also ratified it, there exist mutual binding obligations on the states to provide consular access to prisoners within their borders. With the largest number of Pakistani prisoners abroad being jailed in the Gulf, it is essential that the government negotiate and ensure that their consular officers are granted access to prisons in which our countrymen are incarcerated.

A consular officer must provide support to detained Pakistanis. Whether they require translators, legal counsel, contact with their families, or food and medication, these officers must be available to listen, offer clear advice, and ensure that their fundamental rights remain unfettered.

There are approximately 11,000 Pakistanis imprisoned in jails across the world, often for petty crimes that do not warrant prolonged detention, as a result of racist and error-ridden prosecutions, or under laws that have lapsed and whose sentences need reviewing. Moreover, some prisoners are cleared for repatriation by the host governments, yet delays on Pakistan’s part leaves them languishing in prison, away from their families, their pleas lost in translation to languages they cannot speak.

The goal of a consular protection policy is to determine the mode and manner of consular protection provided by Pakistani missions abroad to citizens within their domains. It should contain elements that circumscribe how that discretion is to be exercised (in a manner that is reasoned and not arbitrary), ensure provision of timely relief to Pakistani nationals abroad who are experiencing, or are at risk of experiencing situations of detention/imprisonment irrespective of their alleged crime, or who require any assistance that falls within the realm of rights and liberties envisioned by our Constitution.

While the government has acknowledged that there is a need for such a policy, one has yet to be formally introduced. In 2019, the government stated that the Foreign Office would formulate a consular access policy with regard to the VCCR, as there existed only guidelines created in 2010. A draft policy was then forwarded to the federal cabinet for consideration. The passing of this policy is long overdue, and with our prime minister’s commitment to this cause, I hope it will soon bring respite for our citizens in distress abroad.

The writer leads the litigation team at Justice Project Pakistan.

Twitter: @sfarrukhsh

Published in Dawn, December 18th, 2020

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