PAKISTAN: The courts and the government bear responsibility in extrajudicial killings in military torture cells. By Baseer Naveed

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The disappearances, killings in military detention centers and dumping of bullet-riddled bodies including torture marks on the bodies of the victims, by the spy agencies particularly by ISI and military intelligence are no longer a secret. This was exposed during the case of Abdul Saboor (29), which was taken in custody illegally by the military authorities, after picking him from prison two years ago. He died in military custody this year allegedly following torture and poisoning, according his mother and his lawyer.
Eleven prisoners went missing in 2010 from Adiala Jail. They were suspected terrorists who were arrested on allegations of involvement in an attack on former president General (retd) Pervez Musharraf, attacks on Kamra and Hamza Camps, GHQ, and possession of suicide jackets, but were later acquitted by an Anti-Terrorist Court. In spite of their acquittal, they were not released. The Lahore High Court (LHC) again ordered their release, following which they were allegedly picked up by the intelligence agencies. There was speculation that they were ‘handed over’ to the intelligence agencies by the Adiala Jail authorities. This was in 2010. In 2011, a senior law officer of the GHQ admitted that the prisoners were in their custody. The advocate general explained that they were formally arrested in April 2011 and a case had been registered against them under the Pakistan Army Act, 1952. Apparently, four of the 11 abducted prisoners have died in custody. A missing person petition has been filed in this regard. The SC issued notices to the defence secretary, ISI and MI director generals (DGs) and judge advocate general (JAG) of the GHQ. In the same case three more suspects of attacks on military installations were killed and their cases were also in the courts.
The Pakistan army and its intelligence agencies enjoy immunity, not only from the government, but also from the higher courts who still claim to be an independent judiciary.
The Supreme Court’s attitude in cases related to the military human rights abuses is evidently different than its attitude when the case involves civilian authorities. This became visible during the hearing of a constitutional petition filed by Ms. Rohaifa, the mother of three men who were arrested by the military and charged with an attack on military installations. One of the three detained sons was killed while in custody of a military detention center. This was after the Chief Justice requested the counsel for the military and its spy agencies to allow the family members of the admitted prisoners in the hospital to meet their missing ones. The Chief Justice was very humble in his request, saying: "If it was possible to arrange the meeting of the relatives with four missing prisoners admitted to Lady Reading Hospital, Peshawar". The request from the CJ implies that it was not a right for the family members to meet with the prisoners who have been missing for two years after having been acquitted by the Anti-Terrorist court.
The Supreme Court (SC) bears responsibility in the killing of four persons while in military custody. Indeed, the court had been previously informed of the situation in January 2011, as a petition was filed stating that eleven suspected prisoners had been taken by the spy agencies of military from the Adiala Jail of Rawalpindi city, Punjab province. This arrest was in spite of having been acquitted by a lower court in 2010 from the charges of attack on military installations, including the General Head Quarter of Pakistan Army. Nevertheless, the Supreme Court unconditionally allowed the military to try the prisoners under the Army Act, 1952. Since last year the court has never inquired about the developments in the trial of the eleven suspects but was aware that four persons were tortured to death in military custody. When the mother of Abdul Saboor filed the petition in the Supreme Court showing apprehension that her sons would be killed, as three other co-chained persons had been killed previously, the registrar raised objection on the petition giving the captors sufficient time to eliminate Abdul Saboor.
In the last proceedings, the court tried to appeal to the media and when counsel from the military side asked for time for submitting his argument, the Chief Justice and other judges loudly said that they would not grant an extension. Then, contrary to their statement, they gave an additional ten days time to produce the remaining prisoners in the court.
The government too has proven itself subservient to the military. It is fully aware of the existence of illegal detention centers all over the country and of the way in which the military's intelligence agencies operate, abducting and keeping persons incommunicado. The government is also fully aware of how the detainees are tortured because most of the leadership passed through the barbarous methods of the military and ISI. This is nothing less than criminal negligence on the part of the government as it is not prepared to either investigate or halt the extra judicial killings, disappearances and torture ongoing in the country.
The president of Pakistan has also been a victim of military conspiracies and was detained for eight years, during which he was tortured. But the domination of the military in the political affairs of the country is so deep and strong that the government cannot act to save the lives of innocent people in custody of the army. The army, armed forces and their intelligence agencies have become an Italian-styled Mafia who can take anybody even from the prison, even if they have been released by the courts, and can then torture and kill then before dumping their bodies on the road sides. And they do this with impunity from the courts and the government.
What the counsel of the military and its intelligence agencies did during the last hearing of the case of Abdul Saboor was nothing less giving an order as a master, mandating the Supreme Court to consider his plea to delay the case favorably. The military had never paid any heed to the courts. The courts have followed suit and never passed any order against the military. The most revolting aspect of the last court proceeding was that the court had to decide whether the killing of a missing person in custody constitutes an abuse of his fundamental rights under article 184 (3) of the Constitution. It failed to concede that filing a petition on the killing of one son and asking to know the whereabouts of the other two sons are the fundamental rights of the mother.
Article 184 (3) of the constitution does not have jurisdiction over the Army Act and courts have always thought that army and its laws were above the constitution, that is why courts never conceded to review the jurisdiction of Article 184 (3) to extend it to cover the Army Act.

The Supreme Court acted very differently in the case of the famous Memo Gat Scandal, when the army chief and the ISI chief filed a statement against the former Ambassador. In that case, none of the fundamental rights of the Army had been at stake, which the court could not ignore and the counsel for Ambassador made a long and persuasive argument that that case did not come under article 184 (3) of the constitution. However, as the matter concerned the Army and its chief the court was very obliging to extend all its cooperation to its past masters.
The question to be raised is the following: how do the courts intend to stop extrajudicial killings and torture when they are quite happy to kowtow to the military and the intelligence services? There is no independent judiciary in Pakistan at the present time and the shame for this situation must fall squarely on the shoulders of the Chief Justice, who is in his present post today because of the sacrifice of the people of Pakistan. The same may be said for the government who has totally failed to control this mayhem. The people who are being tortured and killed are the same people who voted them into power.
The situation in Balochistan is the best example of the chaos of the rule of law. It is a land where the rule of law is not allowed to operate and all law enforcement is left to killers. No one knows how many more will be killed in the coming days? All that is known is that the people of Balochistan have to bury the mutilated bodies of their loved ones almost every day of the week.
Under the present laws, in the presence of a judiciary which was appointed and restored by the orders of the chief of army staff and of a subservient government, it is not possible that the issue of mass disappearances and illegal detention centers run by the military can be solved. In coming days this issue of disappearances may become more critical and serious. This situation demands strong action from the international community to raise its voice collectively to call for the government of Pakistan to rein in the military and reassert itself as being in charge. This will be possible only when Pakistan will have a truly independent judiciary that will assert itself to extend its jurisdiction over the military and its laws.
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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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