"Both governments lack political will" by Zofeen T. Ebrahim

The maritime boundary between India and Pakistan remains disputed nearly 64 years after the partition of the Indian sub-continent. The demarcation of Sir Creek (locally known as Baan Ganga) - a 96-kilometre strip of water in the Rann of Kutch marshlands, which separates the Indian state of Gujarat from Pakistan's Sindh province and opens into the Arabian Sea remains another bone of contention between the two neighbouring South Asian countries.

This issue was well on its way to being resolved by May 2009, the deadline set by the two countries 10 years ago. Then the Mumbai terrorist attacks happened on Nov 26, 2008, after which the Composite Dialogue series aimed at confidence-building measures (CBMs) between the two countries, which began in February 2004, were stalled.

A blow to the disruption in the CBMs has been the issue of the capture of small fishermen who stray into each other's waters and languish in prison long after they have completed their sentence.

Heart-wrenching stories abound on both sides of the border but the two governments remain callously apathetic. The release of prisoners is dependent on the love-hate relationship between the two countries at any given time.

TNS talks to Justice (retd) Nasir Aslam Zahid, one of the members of the Pakistan-India Joint Judicial Committee on Prisoners to find out why this 20-year old issue remains unresolved.

The News on Sunday: When was the judicial committee formed and what does it do in resolving the issue of Indian and Pakistani prisoners in general?

Justice (retd) Nasir Aslam Zahid: The Indo-Pak judicial committee on prisoners was formed in 2008, comprising four retired judges from each country. Before the Mumbai attack of September 2008, Pakistani judges visited India and the full team of the committee comprising eight judges (including four retired judges from India) inspected Amritsar, Tihar (Delhi) and Jaipur jails and met Pakistani prisoners confined in these jails. Thereafter, Indian judges came to Pakistan and the committee visited jails in Karachi, Rawalpindi and Lahore. The Mumbai attack in Sep '08 led to strained relations between the two countries and the next visit was delayed for nearly three years. The Indian judges came in April 2011 to Pakistan and visited the jails in three cities, meeting Indian prisoners. A visit by Pakistani judges to India is now scheduled to take places in the very near future.

After each visit, the joint committee issued a statement. On each occasion, it recommended immediate release of all fishermen by both countries, and also women and children and all persons involved in minor offences. The recommendations of the committee to the above effect have not been implemented by either government.

TNS: How effective has this Committee been?

NAZ: The government has failed to provide us with an effective practical support. There are no funds available to us to even hold our meetings regularly. Our recommendations have not been implemented either and here too, the two governments lack political will to make it a robust and active committee. The governments' purported concern over the issue remains largely on paper only.

TNS: How many Indian and Pakistani fishermen are languishing in jails on either side of the border?

NAZ: There are 234 Indian fishermen undergoing their sentence in Malir jail, 42 detainees (including three boys), who have completed their sentence but remain in prison. In the next few months, all 234 prisoners would have completed their sentence. Prisoners who have completed their respective sentence are languishing in jail and will only go back to their home country as and when the two countries mutually decide so. It is the lack of will on the part of the two governments which has resulted in illegal detention of prisoners who have completed their sentence.

As for Pakistani fishermen in Indian prisons, the number should be anywhere between 140 and 240.

TNS: Do you think the present government has been proactive in taking up this issue compared to all the previous governments?

NAZ: Neither this government nor any previous governments on both sides have ever been overly concerned. There is a humanitarian indifference on the part of both countries. They are just not bothered about the plight of these poor people or what their families may be going through. If the foreign ministers and home ministers of both countries decide, the detainees can be sent home in less than a week's time.

In my opinion, it would be best to have a committee like the one between Sri Lanka and India. When fishermen are caught trespassing, their cases can be decided immediately by this committee. Cases then would not go to courts. Neither country scores any marks, politically or otherwise, in arresting these poor fishermen, confining them in prison for long periods, taking their cases to courts and then keeping them detained after completion of their sentences.

TNS: Has the Indian government reciprocated in the same manner?

NAZ: They have been as apathetic as our bureaucracy. It all boils down to each government's political will and I'm afraid both countries have been lacking in it.

TNS: Do you think this is some kind of a violation of our Constitution? Do you hold the judiciary responsible for this?

NAZ: It is clearly a violation of our Constitution and illegal to keep detainees in jails on account of bureaucratic delays. While the Supreme Courts of the two countries have taken some good decisions with regard to detainees, in my opinion, the judiciary can certainly do more. It can ask the foreign office and the home ministry to expedite the issue and find a solution to the delay that takes place in the repatriation of prisoners and cases of apprehended boats.

TNS: Do fishermen know the demarcation line that divides the waters between Pakistan and India?

NAZ: There is no visible dividing line and no instruments on the boats that can show where one boundary ends or the other country's begins.

TNS: What's the penalty for trespassing?

NAZ: According to the Foreigner's Act, the maximum punishment is ten years' imprisonment, but intention counts and most fishermen are given a six-month sentence, although they languish in prisons for much longer periods as detainees.

TNS: Do you think the captured fishermen should be treated differently from other prisoners? Are these arrests unfair? Why?

NAZ: These arrests are unfair. What's their crime? Just that these fishermen, most of them living below poverty line, crossed over unintentionally for livelihood purposes. It's a high price they pay for a small, unintended crime! They are thrown into further destitution as their means of livelihood - boats - are not released.

The best step would be that the maritime security agencies should warn them of crossing over and send them back to their waters.

TNS: Are most accused of spying? Has this ever been proved to be true?

NAZ: In so many years, to my knowledge, not a single fisherman has been accused of spying.


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