01.09.2013 Prisoners of artificial boundaries
The poor fishermen are left languishing in jail without any reason or ground of detention, and without jurisdiction or lawful authority. The state thus treats them like prisoners of war and political pawns, deprived of any right to a fair trial
By Shaffaf Shahid
The escalating arrests of fishermen inadvertently crossing the Pakistan-India maritime border, and their prolonged and unlawful detentions have compelled civil society organisations to step in to counteract the egregious lapses on the government’s part in securing the safety and liberty of its citizens.
On July 23, Indian border security forces arrested Pakistani fisherman Gul Bahar in the Sir Creek area, in response to which the Pakistani Acting Deputy High Commissioner in New Delhi served a démarche.
Although the respective Foreign Ministries’ have issued timely joint statements agreeing on recommendations for the release and deportation of detained fishermen, state agents have, otherwise, remained resolutely silent on the issue.
While the media may rejoice over the release of any detained fishermen, such sporadic releases are usually meant to be expressions of good-will, or they merely mark the ‘successful end’ of the most recent round of political talks between India and Pakistan — not unlike the release of a few celebratory fireworks — and they need to be guaranteed and not left to the political/diplomatic whims of the few.
Nevertheless, such discrete acts reveal the inherently paradoxical nature of the nation-state as on the one hand it promises to protect the life and liberty of its citizens, and on the other it validates the use of violence in state surveillance to protect its ‘sovereignty’. There are two interesting aspects to this; first is the absurdity of the artificial creation of physical boundaries specific to and constitutive of modernity, and second is the act of privatisation of seas and oceans by creating these boundaries, which necessitates the use of force by the state to protect its ‘sovereignty’ and to reinforce itself, leading to the subsequent militarisation of these seas and oceans.
The marginalisation of traditional fishermen is then inherent in the very imagination and conception of the nation-state and the concomitant reconstruction of space, as the inadvertence on the part of the fishermen is translated into a deliberate attack against the myth that is the nation-state.
Multiple factors can be attributed to the straying of fishermen into foreign waters, including lack of navigational tools and depleted resources forcing them to tread out into deeper waters for a better catch. Another reason is the dispute over the maritime border at Sir Creek at the Rann of Kutch, which flows out into the Arabian Sea. Pakistan claims possession of the entire creek through the Bombay Government Resolution of 1914, while India insists on a mid-channel border on the basis of the Thalweg Doctrine in international law.
However, while the dispute might be a reason for the accidental straying of fishermen, there is another cause underlying their arrests and detention, which began in the 1980s: that reason is the creation of the Exclusive Economic Zone (EEZ) by the United Nations Convention on the Law of the Sea, which, ironically, provides against the arrest or detention of such fishermen.
Pakistan signed the United Nations Convention on the Law of the Sea (UNCLOS) on December 10, 1982, and ratified it in 1997, in order to establish a legal order for the seas and oceans, as recognised by its preamble. The Exclusive Economic Zone (EEZ) prescribed by UNCLOS hammered the final nail as it created a 200 mile zone over which the state exercises special rights of exploration of marine resources, stretching out from the coastal baseline beyond the customary territorial waters.
With the disputed area at Sir Creek transformed into a zone of exclusive economic rights, the Pakistani state associates any breach of the border as a threat to its sovereignty. The Atlantique incident of August 1999 is another example of the militarisation of the space, when a Pakistani naval aircraft was shot down over Sir Creek by the Indian Air Force, allegedly for violating its airspace.
Henceforth, straying Indian fishermen became a national threat. On the other hand, Pakistani fishermen straying out of territorial waters have been deemed disposable, for as Polish sociologist Zygmunt Bauman argued, modernity is constituted by the boundaries erected between the normative and the disposable.
This narrative verbosely plays out in our laws — or at least in their interpretation. Indian fishermen, including juveniles, are arrested by the Pakistan Maritime Security Agency (PMSA) and prosecuted and convicted under the Foreigners Act, 1946, and orders for their detention are made “in the interest of the security of Pakistan”. Although the statute also provides that such detentions shall not exceed two months, renewals are sought after every three months, and the poor fishermen are left languishing in jail without any reason or ground of detention, and without jurisdiction or lawful authority. The state thus treats them like prisoners of war and political pawns, deprived of any right to a fair trial and to be released only in exchange for the release of Pakistani fishermen detained in India.
It is interesting to note that following the latest meeting in May 2013 of the Indo-Pak Joint Judicial Committee, a committee constituted in 2007 to expedite the release of detained fishermen, some news articles reinforcing the state narrative were published. The articles termed the efforts of civil society organisations as misguided and claimed that Indian fishermen were poachers causing huge losses to Pakistan’s fishery resources. One wonders why our fishermen would live in such abysmal poverty or be compelled to tread out into deeper waters to fetch a decent livelihood when our waters are teeming with resources attracting these exploitative and scheming Indian fishermen.
Regardless, how can a misinterpretation of the law and the degradation of imprisonment be justified and seen to be proportionate when the PMSA can simply direct them back to Indian waters? As per a report in the Indian daily The Hindu, the recently arrested Pakistani fisherman Gul Bahar was heavily manacled by Indian forces on his arrest “in the manner of a dreaded outlaw”, despite the Supreme Court forbidding manacling except in some “rare and extreme cases” — cases of rogue fishermen, one assumes.
As far as relief is concerned, the executive has been erratic at best and motivated by political interests. One of the statutory functions of the Pakistan Maritime Security Agency (PMSA) is the protection of fishing vessels and crew against any threat. The PMSA needs to devise a mechanism whereby Pakistani fishermen are prevented from straying out into disputed waters or are guided back to safer waters. Moreover, it needs to engage with the Indian Coast Guard to draft a ‘release at sea’ policy for the prompt release of fishermen accidentally entering disputed waters.
The Foreign Office must also work to obtain information of missing/arrested Pakistani fishermen and make all efforts to engage with the Indian authorities for their release and deportation. It also ought to abide by its part of the Consular Access Agreement of 2008 and enforce the recommendations of the Indo-Pak Joint Judicial Committee, which are within its power to do so, regarding detained Indian fishermen. The judiciary has played a somewhat more active role and has directed the government to release Indian fishermen on several occasions.
The straying of fishermen is an issue that needs to be depoliticised, and straying fishermen need to be protected and not continually treated as Bauman’s ‘waste products of globalisation’.
The political nature of such detentions is also evident from the fact that we don’t have any bilateral agreement with India under the Transfer of Offenders Ordinance, 2002, although similar ones have been signed with Thailand, Sri Lanka, and the United Kingdom. The State also needs to be careful when bandying the term ‘sovereignty’ about — while the killing of innocent civilians by drone strikes does not deserve a response, apart from formal condemnations, the straying of poor Indian fishermen into Pakistani waters is a national threat and demands instant retribution — in either case, it is the poor citizens that lose out.