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IF Afia Siddiqui is the ‘daughter of the nation’, then the 10 citizens of Pakistan who have been beheaded by the Kingdom of Saudi Arabia in the last two months must really be some despised foster children. Any sense of ownership over our citizens, it seems, arises not from the Pakistani passport they carry but by the identity of, and our feelings towards, their captor.
By all public accounts — and those are the only accounts available as no one bothers with a detailed official account — the trials of these individuals suffer from serious defects: no defence lawyers, proceedings conducted in Arabic, in a foreign legal system with no guidance, no independent translators and no assistance from the Pakistani consulate.
Also read: Sixth Pakistani beheaded in Saudi Arabia in 3 weeks
So for the ones who have died, and the ones at risk, the question begs to be asked: don’t such persons have any right to expect help from their own government? As citizens of Pakistan, were they not entitled to some level of ownership and protection from their state? Or is it that once you leave the borders of Pakistan, your own country has nothing to do with you? What does it even mean to call oneself a citizen of Pakistan?
The pact between citizen and sovereign has two fundamental elements. The citizen owes allegiance, obedience and loyalty to the sovereign while the sovereign offers its citizens protection. This pact — that goes to the core of citizenship — is enshrined in Articles 4 and 5 of our Constitution. Article 4 entitles the citizen to the protection of the law “wherever he may be” and Article 5 secures the commitment of loyalty and obedience. Article 4 further specifically provides that no action detrimental to the life of a person can be taken except in accordance with law.
The trials of our citizens in Saudi Arabia suffer from defects.
The words “in accordance with law” and “protection of law” refer to the principle of legality: that life cannot be taken unless a law provides for it. Does this mean that as long as a law provides for it, no matter how flawed or draconian, the condition is satisfied? No. Domestically, the fundamental rights in our Constitution provide the safeguards that must be met and which no law can breach (Article 9, right to life and Article 10A, right to a fair trial). Internationally, various treaties and declarations and even customary international law (law that is binding on all countries regardless of whether they have signed the treaties or not) have come to recognise the minimum safeguards that must be involved in any trial.
Could it be argued that there is a problem of jurisdiction — that Pakistan cannot enforce the domestic or international law rights of its citizens within Saudi Arabia because local Saudi law would govern? Not really.
When a state acts in contravention of international law against the citizen of another state, the state of the victim is wronged and entitled to a remedy. So, when Pakistani citizens are beheaded without due process in violation of international law, Pakistan itself is a wronged state. However, is it not up to Pakistan whether it enforces its rights against a state? Can a citizen force a state to act a particular way in the conduct of its foreign relations?
In the aftermath of Sept 11, 2001, this question was raised in the British courts, where families of British citizens approached the court to direct the government to intercede on behalf of citizens who were held without trial in Guantanamo. In a landmark ruling, the court held that a citizen could have a legitimate expectation that the state would take some action on his behalf, unless it could provide reasons for not doing so (which could be reviewable by a court).
The UK Supreme Court also confirmed this ruling in a separate case in October of this year dealing with a British national facing death row in Indonesia. This legitimate expectation can arise out of a country’s decision to ratify an international treaty. Pakistan ratified the International Covenant on Civil and Political Rights in 2010. Therefore, Pakistani citizens arguably have a legitimate expectation that the state would intercede on their behalf to protect these rights (which include a fair trial).
The least our citizens can expect is that there should be a rational policy in place to assist Pakistanis facing death row abroad — that they would not be sacrificed at the altar of the many ‘gifts’ of the Saudi kingdom upon this country.
That they would be assisted in conducting their trials, in finding lawyers, in filing appeals, in understanding the system, in receiving information prior to travel. If it means anything to be a citizen, it must at the very least mean that when you face death in a foreign land, your country will care.
The writer is a Lahore-based lawyer.
Published in Dawn December 16th , 2014
