The higher courts of Pakistan have failed to respond to the growing number of abductions and forced disappearances at the hands of the country`s security forces. Instead they are in effect acting as accomplices to the perpetrators.
In what manner have the courts failed? Either they fail to take notice of a case, or they unquestioningly accept the denials of various authorities that a person has been arrested or detained: take the following examples.
Hayatullah Khan, a journalist in North West Frontier Province, is known to have been arrested by five military personnel on 5 December 2005. He was found shot dead this June 15. Although his case has attracted widespread media interest and appeals from international rights groups, the courts at no time are known to have issued any notice on the case to call suspected authorities for inquiries.
Munir Mengal, the managing director of the Dubai-based Voice of Baloch television service, was stopped for questioning by members of the Federal Investigation Agency at Karachi International Airport on April 4. He called his wife to ask her to come, but by the time she arrived he was gone. Although the Sindh High Court has held more than a dozen hearings on her petition, it appears to be so terrified of the concerned agency that it has never called its personnel to explain about what happened on that day or whether or not the missing person remains in their custody.
In the case of Dr Safdar Sarki too the court pointedly avoided calling the key accused for questioning. It asked the Ministry of Defence and provincial government to produce him but never called for the Deputy Superintendent of the Joharabad Police who was responsible for the victim`s arrest on April 11.
The cases of Mengal and Sarki are among several where the courts have not gone directly to the responsible agencies but played around on the sidelines in an effort to look as if they are somehow concerned or involved. According to newspaper reports, a July 20 decision in the Sindh High Court held the government responsible for locating missing citizens` whereabouts and identifying the controlling authority of the concerned agencies. This apparently progressive statement from the court is, however, just another attempt to avoid taking responsibility to challenge the security agencies directly. Some other recent cases that speak to this practice include the following.
Nayyar Hussain Zaidi and Nisar Haider was one of only two out of some 24 persons who have been released and whereabouts made known since they were arrested by intelligence officers over an April 11 bomb blast that killed around 60 others. They were released not through the order or action of any court but just because military intelligence could not be bothered with them. Incredibly, when petitions to produce the missing persons were filed in court the Ministry of Defence and Sindh government both denied that the men are in custody. This is after the two released men themselves said that they had been held and interrogated by army officers. But the court has not asked the authorities to explain this apparent contradiction.
Most recently, the petitioner in the case of Asif Baladi has produced the registration number of a car that came to the victim`s house after his disappearance on June 26 to collect documents from his family: the car has been found to be registered to a brigadier of the Inter-Services Intelligence. But the court has never bothered to summon the brigadier or for that matter anyone from his agency.
Numerically, the greatest number of disappearances is believed to be in Balochistan Province, where the Pakistani Armed Forces are conducting aerial bombardments and ground operations in which according to the federal interior minister some 4000 persons have been arrested. Out of these, less than 200 are known to have been produced in court. No one knows about what has happened to these thousands of people. Nor have the superior courts bothered to involve themselves about their fundamental rights.
What are the key characteristics of these and other similar cases? First, the courts simply have no interest to get involved. Secondly, where obliged to get involved, they refuse to challenge the authorities at any level on alleged wrongdoing. Virtually identical statements of denial are accepted without question. Pakistan`s "poodle" judiciary just goes along with its masters. Even where petitioners can identify specific police officers and stations concerned, the judges have failed to take action.
The courts in any country are sought out as the guardians of people`s basic rights and as the bulwark against excesses of power by other parts of the state. Where they fail in this role, as in many jurisdictions in Asia, the demoralising effect on society is far worse than that caused by other institutions. The police or military may breed resentment and spread fear when they illegally detain an innocent person, but it comes as little surprise that police and soldiers are inclined to act beyond their powers. The courts and related institutions exist to monitor and punish such actions. If they instead serve as tools for the agents of brutality and oppression, then this has a terrible draining effect on national spirit. Over a prolonged period--as in Pakistan --the effects may be all but irreversible. They feed into and spread a contaminated environment to which a retired UK lord of appeal, Lord Steyn, referred in a recent speech when he said that
"Majority rule by itself, and legality on its own, are insufficient to guarantee a civil and just society. Even totalitarian states mostly act according to the laws of their countries. They demonstrate the dangers of uncontrolled executive power. They also show how it is impossible to maintain true judicial independence in the contaminated moral environment of an authoritarian state."
The Asian Human Rights Commission (AHRC) is of the candid view that Pakistan`s judiciary holds the primary responsibility for the gross abuses of human rights in that country, including forced disappearances by willingly serving as an arm of the executive rather than attempting to assert its independence. By allowing the military repeated opportunities to take power, offering it the chance to amend or throw out the constitution, and refusing to take a strong stand against rampant violations of rights it has failed in its obligations to the people of Pakistan. In fact, it has failed in every respect to do its job. It is a sad indictment on all senior judges that the chief justice is more interested to take notices about whether or not food has been served at wedding parties--which has been prohibited in Pakistan--than whether or not the police, army or intelligence services are abducting and killing people. In this year that Pakistan`s judiciary is celebrating its 50th anniversary, more than 1000 reported disappearances in the country remain beyond the confines of the courts, to say nothing of the host of other gross violations allegedly committed by state agents that the country`s esteemed justices have never had the time or inclination to entertain.
The Asian Human Rights Commission urges Pakistan`s judges, particularly the chief justice and the Supreme Court--the supposed custodian of the constitution and supremacy of law--to at last recognise their obligations and take a stand against the systemic denial of human dignity and civil liberties in the country. Ultimately, they alone have the constitutional, legal and moral capacity, if they search for it, to protect the fundamental rights of all people in Pakistan. Without the courts assuming their duties with a degree of integrity and resolve, there is no possibility that the fundaments of the rule of law will again be laid in Pakistan.
The AHRC also calls upon the higher judiciary to have the courage to ban all the extra-constitutional law enforcement agencies that are running rampant in the country under the guise of various "intelligence" services and summon their agents to the courts to answer every outstanding allegation against them. Until a strong position is taken by the courts on the role of these agencies in gross abuses of human rights it will not be possible to reduce the incidence of these practices.
The AHRC further calls for immediate discussion on the establishment of a high-powered independent commission set up by parliament to investigate the growing number of disappeared persons in Pakistan. It urges all concerned persons, including journalists, human rights defenders, relatives of victims and lawyers, to become actively involved in pressing the government to see such a commission established and the persistent abductions and killings at once brought to an end.