A story of tears

| by Qurat Mirza

"We are the prisoners of war... Our dreams have been doctored. We belong nowhere. We sail unanchored on trouble seas. We may never be allowed ashore. Our sorrows will never be sad enough. Our joys never be happy enough. Our dreams are never big enough. Our lives are never important enough, to matter." (God of Small Things by Arundhati Roy)

( February 10, Hong Kong, Sri Lanka Guardian) Pakistani fishermen in Indian JailFishermen are treated and exchanged like prisoner of the war as many countries are facing the trans-boundary cases all around the world like Indonesian Fishermen in Australia, Papuans in Australia, Eritrean and Yemen fishermen, Senegal and Mauritania, Kenyan in Somalia, Thai fishermen in Malaysia, Vietnam and Cambodia, Pakistan and Iran, Indian and Sri Lankan fishermen, Indian and Bangladeshi fishermen and Indian and Pakistani fishermen.

The Issue in the Pak-Indo context: The practice of apprehending each other's fishermen, along with their boats, has been followed by Pakistani and Indian forces since the time of the patrician and for the last more than half century poor fishermen on both sides have suffered immensely due to this cruel practice. The Maritime Security Agency (MSA) of Pakistan is responsible for the arrest of Indian fishermen when they reportedly enter Pakistani waters while for India, the Coast Guard, Border Security Force (BSF), Customs or the Indian navy does the same to Pakistani fishermen. Pakistani and Indian civil societies have been continuously raising the issue with their respective authorities and due to these efforts many fishermen have been released from time to time. However, the problem has not yet been solved for good. What is seemingly a simple issue has been made complicated because the two states have been maintaining a policy of enmity and rivalry all along after their independence and thus arresting each other's fishermen. This is a tit for tat game between the militaries of the two countries. Similarly, the punishment for crossing into the other country's water by fishing boats may be imprisonment for a few months but due to the hostility between the establishments/ruling classes of these countries, the fishermen languish for years in detention centres even after completing their imprisonment.

Laws and the dispute: The fundamental freedom of the indigenous fishermen is not only protected by the Universal Declaration on Human Rights and the International Covenant on Civil and Political Rights (ICCPR), But the United Nations Convention on the Law of Sea (UNCLOS) also allows the coastal states to protect their territorial waters and economic zones and hence Pakistan and India have framed their corresponding laws. The Sir Creek dispute between the two countries received more importance after the UNCLOS because the claims of the two countries may have implications for the main maritime boundary between them in the Arabian Sea.

Traditionally, Indian fishermen might have been fishing in the creek in the past; so now Indian boats may deliberately enter the creek to stake a claim for sharing the creek. The Indians have all the sophisticated equipment to monitor their positions and therefore they cannot make a human error. In a nutshell, we can conclude that both the states are arresting each other's fishing boats to maintain and compound the Sir Creek dispute.

The role of civil society: Though the families and relatives of the detained fishermen have been raising the issue with the authorities of both the countries and the media had been highlighting the travails of these prisoners there has been no real breakthrough. In the mid nineties, alarmed by the serious human rights violation against the detained fishermen CSOs/NGOs of Pakistan and India went into action. The notable organizations in Pakistan had been the Human Rights Commission of Pakistan (HRCP), the Pakistan Institute of Labour, Education and Research (PILER) and the Anjuman Samaji Behbood of Ibrahim Hydri in Karachi which later grew into the Pakistan Fisherfolk Forum (PFF). Their continuous struggles bore fruit when in the Malè SAARC Summit in July, 1997 the prime ministers of Pakistan and India announced the release of 195 such prisoners from both countries. Though apprehending the fishermen's boats did not stop, human rights activists and fisherfolk communities themselves became more vocal about their conditions including this problem of arrests at sea. As the South Asia Labour Forum (SALF) also brought this issue into the limelight, various international organizations started paying attention to this human rights issue and it became an international level concern. At present, the fisherfolk's movement has become strong enough to give a vociferous knock at the doors of the authorities. So much so that the issue of detained fishermen has become a permanent mention in India-Pakistan foreign relations and dialogues.

A mother - waiting for the return of her two fishermen sonMiseries the detained fishermen' families face: When the boats do not return in accordance with their expected time the grief and gloom of a death scene is cast over the whole village to which the apprehended fishermen belong. Families and close relatives rush for more information and through various means it is confirmed that their loved ones actually were arrested, these days it is possible to confirm quickly because of the communication links between the fishermen organizations on both the sides of the border; previously it used to take months just to do that. In some cases, when other boats have seen the capture while escaping in time, the families are at least saved from the anxiety and fear of the unknown.

Fishermen who are captured at sea are generally poor people; they work for the boat owners on a catch-sharing basis. Once these bread earners are arrested, most of their families face serious economic crises. In worst scenarios fishermen belonging to the same family fall in the hands of the enemy's security forces. In any case women, old and children of the affected household quickly run out of food and savings if any. For a few days some neighbour or the boat-owner or a well-off relative may take care of them but after a month or two they are on their own.

Can we imagine what happens to the family when the only bread-earner of a family is arrested by the coast guard or border force? Their laughter and happy moments turn to grief and sobs; children are forced to leave their schools and start begging; their health deteriorates; everybody in the community looks downs upon them; veil-observing women are compelled to come out and resort to domestic labour. All they earn is one time food in 24 hours; their dignity is gone and they have to face an insensitive world all around.

Legal aspects and obstacles: Once the arrested fishermen are sent to jails they are at the mercy of the legal systems and practices in the respective countries. Legal institutions in both the countries are not much different when it comes to the prisoners. The situation is worse in case of foreigners, in particular Pakistanis detained in India or Indians in Pakistan. The procedures are so cumbersome and slow that the fishermen languish in jails for two to three years irrespective of their due punishment based on the charges framed against them.

Whatever the charges, poor fishermen are not told anything about these charges and their implications. They do not have their counsels and cannot prepare any legal defence against these cases. So the judges of these courts take full liberty in dealing with such cases. Once they have served their sentences they are out of jail but cannot go to their homes and hence are detained in different places and sometimes these are worse than a jail.

AHRC-ART-005-2012-03.jpgPerformance of government institutions and lack of information: Logically speaking, ministries of the interior (provincial and federal) or home ministry must have all the records and pursue the cases as they are supposed to protect their citizens. The officials of these ministries do not proactively work on the issue but rather wait for the information from the FCS or an NGO or fishermen’s families. For confirmation they just refer the case to police stations so as to confirm the identity of the detained fishermen, which takes months. They seldom approach the apprehending party across the border directly and quickly; in fact they do not have any direct contact, nor would they like to pursue the cases, as it is not included in their duty. In the meantime there comes a meeting of the secretaries or the ministers of internal/external affairs of the two countries and these official scramble for information so as to use it as a bargaining chip on the negotiating table. That is how the need of consular access to their citizens is felt and the move to issue a notification from the foreign offices is made.

One must keep in mind that the number of staff in the Pakistani and Indian High Commissions are determined by mutual agreements and they usually are not enough. Telephone communication across the border is either tapped by the intelligence agencies or there is simply fear that it is not safe to call somebody across the border. In any case it is culturally and socially prohibited to make a phone call across the border.

There is no consolidated information about detained fishermen because it is not updated regularly. As regards Indian fishermen MSA keeps the record, which seems authentic and updated, because of the simple reason that it is the only force, which apprehends the Indian fishing boats. FCS maintains the file of Pakistani fishermen arrested or released but its source is nothing but fisherfolk families. Government departments and ministries depend on the communications from MSA or FCS or CSOs. In any case there should be a record somewhere, which consists of all the names of all the detained fishermen with their particulars including date of arrest & release and the address of the jail.

Reasons behind the arrests: There are various reasons behind this whole phenomenon. Some of the incidents are just circumstantial or accidental or due to ignorance; sometimes these may be interest-driven or due to desperation while there are also deep-rooted systemic problems behind these arrests. There is no physical boundary in the sea. In most cases fishing boats can unwillingly and unintentionally cross in the other's territories because of tidal currents, engine failure, wind force and cyclones.

Fishing is like hunting; once the fishermen have spotted the fish, they are engrossed in the pursuit of their expected catch and in managing their nets. Meanwhile they might have crossed the so-called border and are not even aware that the apprehending force is keenly watching and following them. The fish resources have also been depleted significantly, boat owners now are mostly investors and have a pressure on the captain and the crew not to return empty handed. In any case fishing boats may take a little risk in getting close to the boundary. And if by bad luck the armed contingent of the other country is hell-bent on performing a patriotic duty to catch the 'enemy', they are readily arrested. But these are not the only causes; in fact there are deep-rooted systemic defects, which are reflected in the states' policies and practices in relation to the whole fishing sector and the fisherfolks. Moreover, the rivalry between the two states is the main cause for the travails of fishermen.

Fishermen: Pawns in the states' game of rivalry: Prisoners in general and jailed fishermen in particular have become a permanent agenda item in Pakistan-India negotiations, relations or dialogues. The two states have not come out of the inherent rivalry/animosity since their inceptions. The political leaders and governments have tried to normalise their relations but other powerful state institutions like the defence establishments or civilian bureaucracies have a way of foiling such initiatives.

Indo-Pakistani relations are marked by a primitive kind of exchange that defines the relationship between individuals and communities in many societies: handshakes are exchanged for handshakes, stranded fishermen are exchanged for stranded fishermen, prisoners are swapped for prisoners, visa restrictions are slapped to avenge visa restrictions and diplomats are insulted and retaliate. Such a mindset of the two establishments can complicate the fishermen

Recommendations: The India-Pakistan Judicial Committee on Prisoners has come up with a set of recommendations, but these are conceived by assuming that Pakistan and India maintain a status quo in their existing relations which is not enough as regards the fishermen’s rights and livelihood is concerned.

Nevertheless one of such suggestions is that the camps, parking for the apprehended boats and jails for fishermen should be close to the maritime border, somewhere near the mouth of Sir Creek. This whole area may be declared as no man’s land so that Pakistanis and Indians could visit it without passports and visas. In addition, it is recommended that fishermen should be trained by the agencies on both sides so that they can protect themselves and don’t get arrested.

Fisherfolk communities, families of the detained fishermen and the civil society of South Asia would demand that arresting the fishermen in mid sea should be stopped and those already imprisoned or detained should be released immediately and unconditionally. Maritime boundaries between India and Pakistan should be quickly defined and agreed. These boundaries should be visible and identifiable to the fishing boats. The Maritime Zones Acts of both the countries should be amended so that entering of foreign fishing boats into these zones is just a misdemeanour and after warning these boats and their crews should be released.

This includes long-term developmental strategies for the fishing communities, Marine resources of South Asia should be protected from industrial trawlers and marine pollution, the marine resources should be declared as the ownership of traditional fisherfolk and they should have exclusive rights to carry out their centuries old profession. Government should develop the fisheries sector and other development programs should be carried out in the areas of the fisherfolk communities and fishermen of all coastal countries in South Asia should have rights to fish anywhere in the Economic zones of South Asian Countries.