After keeping prominent Pakistan fisher folk leader and front line activist Saeed Baloch incommunicado in illegal and arbitrary detention for eight days, the Pakistan Rangers dramatically produced him in court on January 26, 2016. Earlier, the Rangers had denied that Saeed was in their custody.
On January 16, 2016, Saeed Baloch was called by phone to the Rangers’ office, after which he disappeared and his phone was not reachable. His wife immediately filed a petition for his recovery in the Sindh High Court single bench on January 17, but Judge Justice Ahmed Shiekh refused to listen to the petition, pointing out that the petition against Sindh Rangers cannot be heard by a single bench. This was a classic example of rule of law in the country.
The petition was then referred to the chief justice, who formed a divisional bench consisting of two judges. The bench heard the petition on January 25 (notice that the hearing took place eight days after filing of the petition and this is a habeas corpus petition) and deferred the case to February 1, asking the Sindh Rangers to give comments on the said petition.
Suddenly, on the afternoon of January 26, the Rangers produced Baloch in the Anti-Terrorism Court and pleaded that Saeed and three other officials of the Fisherman Cooperative Society (FCS) were arrested from their residence that same day.
According to the Rangers, the four suspects were arrested on January 26 within the jurisdiction of the Kalri police station, where during initial questioning they confessed to having funded outlawed Peoples Amn Committee leader Uzair Jan Baloch, Lyari gangster Noor Mohammad alias Baba Ladla and the proscribed Balochistan Liberation Army (BLA) for a long time. These funds were apparently used to purchase weapons for use in Karachi and Balochistan. The spokesman also said that the suspects gave employment to 150 gangsters in the Fishermen Cooperative Society (FCS) at the behest of Uzair Baloch.
Surprisingly, the administrative judge of the Anti-Terrorism court, who is also a High Court judge, granted 90 days physical custody to the Rangers of the four suspects.
It is no secret to the Sindh provincial judiciary that Saeed Baloch was illegally kept in Rangers’ custody after he was asked to come for an interview at the Rangers’ Kemari station on January 16.
Judicial ineptness and long undermining the judicial role of guaranteeing the fundamental rights of individuals has led to an acceptance of the primacy of law enforcement agencies. Keeping persons incommunicado is seen as their legal right, and their investigations and statements are the sole basis upon which judicial decisions are made. Pakistan’s judiciary thus plays a silent spectator to the human rights abuse meted out to citizens under the various guises of security, morality and national interest.
When the guardians of constitutional rights play the role of a fiddle in the hands of the military, who will question under what law the police and military are acting, and who allowed them to transgress their authority and extra judicially kill citizens?
Why has Pakistan’s judiciary allowed its powers to be usurped by the security forces?
It is high time that the judiciary steps forward and stops the evil nexus of the state and the law enforcement, where the latter helps the former in maintaining its writs and reaps monetary and social benefits thereof.
Impunity Shrouds Disappearances
Torture, enforced disappearance, and extrajudicial killings have become endemic in the country marred by internal conflict. Rule of law and justice have become a distant dream for the victims and families of missing persons.
And, disappearances, extrajudicial killings, torture in custody and arbitrary detentions, have been given legal and constitutional coverage by the government. Through the Pakistan Protection Ordinance (PPO), amendments in the Anti-Terrorist Act, 1997, and also the formation of military courts for summary trials, law enforcement agencies have been given unbridled powers to make arrests, keep persons in incommunicado, and shoot on sight.
The courts, for their part, have become redundant. In the context of disappearances and extrajudicial killings, even courts have no say with respect to those tortured by the military or paramilitary. The military and Pakistan Rangers can keep detainees for 90 days in physical custody, as authorised by the latest draconian laws.
The courts have indeed turned their backs on the victims of enforced disappearances. On March 15, 2015, Bench No. 2 of the Supreme Court, headed by the Chief Justice, assured the relatives of missing persons that a larger bench will be constituted to hear the case and that the Supreme Court would be hearing these cases regularly.
However, on Nov 4, 2015, the Chief Justice of the Supreme Court disposed the cases. The rights groups and families of victims were dismayed by the response of the Supreme Court. In its order, the Court stated that the purpose of the proceeding in the missing person’s case had been served. The Supreme Court, vide its order on Constitutional Petition 77/2010, stated,
“In this petition of proceeding, which had already taken place in this petition and other connected proceedings, we felt that they have served their purpose. Accordingly, Constitution Petition No. 77 of 2010 along with all connected CMA’s (Civil Miscellaneous appeals). H.R.Cs (Human Rights Cell) are disposed off.”
In Petition Number 77 of 2010, there were petitions of 197 missing persons who had been disappeared after the arrest by State agencies.
To date, Pakistan has no law that specifically addresses the matter of enforced disappearances; it is one of the few countries in the world that has not signed the “international convention for the protection of all persons from enforced disappearance”. The convention explicitly prohibits enforced disappearances and provides that “no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”
A judicial inquiry into mass graves discovered in Totak, Balochistan, on January 25 proved to be a joke for failing to adequately investigate State security forces. Baloch activists claimed that the graves belonged to ethnic Baloch activists who had been subjected to enforced disappearance. Time and again the State security apparatus has denied involvement in Baloch missing persons cases and the courts have proceeded to give them a clean chit to continue perpetuating their violence.
Laws such as PPO extend license to the agencies to indulge in extrajudicial killings and enforced disappearances; they are used as tools to stifle political rights movement in Balochistan, where murder in cold blood is a norm.
The Voice for Baloch Missing Persons (VBMP) has reported an upsurge in the incidents of disappearances since the promulgation of the Protection of Pakistan Ordinance (PPO). The law is not intended to curb terrorism in the country, where banned faith-based elements with dubious intentions continue to freely operate, sometimes under official patronage.
Nasrullah Baloch, President of VBMP has claimed that security forces agencies are behind enforced disappearances and the dumping of bullet-riddled and mutilated bodies in Baluchistan. He has stated that such gruesome violations of human rights have continued without relent despite Supreme Court directives. Meanwhile, official figures of those arrested, as result of the implementation of the notorious National Action Plan, have risen to a whopping 9,000 persons.
Balochistan Chief Minister and Governor Nawab Magsi have failed to fulfil their promises despite enjoying four years in power. They have so far failed to address a single problem, particularly the missing persons’ issue. The recovery of mutilated bodies is a slap in the face of so-called democratic government.
The PPO is corrosive to the rule of law in the country and has made it practically impossible for the victim’s families to know the whereabouts or fate of their loved ones. The promulgation and implementation of such regressive laws have taken the country back to the stone ages, in terms of human rights. The rampant abuse of authority by the agencies and the security forces is blamed on the State’s policies of legitimatizing abuse of power.
The custody of the accused has now been extended to 90 days and there is no provision to assure that the accused will not die in custody due to third degree torture, which the law enforcement agencies routinely mete out to victims. As reported by the VBMP, many of the dead bodies increasingly surfacing belong to missing persons; some of these missing persons are also officially recognized as missing.
The military courts have been given constitutional cover to try any civilian accused of terrorism. The Baloch activists fear that many of the disappeared will be tried surreptitiously and hanged without due process. Military courts are a direct contravention of Article 10 of the Constitution of Pakistan and have stealthily taken away the rights of the citizen to due process and fair trial.
The country is ranked fourth on the human rights risk index, yet State policies show no seriousness in adopting effective strategies to repair this image. Enforced disappearance and the State’s ‘kill and dump policy’ has caused mistrust between the general populace of Baluchistan and the Federal government, prolonging the insurgency.
The State’s strategy of creating and supporting Islamist extremist groups to manage domestic political challenges has enormously aggravated the problem in Balochistan. The State hasn’t dispelled the general notion and fear of the ethnic Baloch that they will become a minority in their own province before the initiation of the project. The ethnic cleansing that has ensued has further exacerbated the situation for the victims of enforced disappearances.
The agencies unabashedly parade alleged accused persons in front of the media and later the news of their being killed in an encounter surfaces in the media. Even the apex court has become ancillary to State atrocities. The Human Rights Cell in the Supreme Court, vested with the responsibility to follow up and support the cases of human right abuses, has become dysfunctional; the families of victims complain that the Cell no longer facilitates them in the proceedings of the cases.
The same criticism has also been made of the Commission of Inquiry, meant for inquiring into the cases of disappearance in Balochistan. This Commission of Inquiry is said to have limited authority over the various law enforcement or intelligence agencies allegedly involved in the cases of enforced disappearance. The Commission accepts the denial of the agencies regarding their involvement in disappearances, despite the existence of corroborative evidence against them. The Commission has never initiated any criminal proceeding against the perpetrator agency despite having the so-called powers.
The State can’t continue with its current policies of depriving the Baloch of their fundamental right. The insurgents who are demanding their due rights must be brought to the negotiation table if sustainable peace in the region is to be achieved.
The Baloch people who are the major victims of enforced disappearances and extrajudicial killings have not been left with the possibility of any constitutional or legal remedies. This situation has lead to the utter sense of alienation among the Baloch people.
The government, instead of reforming its criminal justice system to enable speedy trial, fair investigation, and proper prosecution, has given inordinate power to police, military, and other law enforcement agencies to restrict fundamental rights of the people in the name of fighting terrorism.
The government must invest in the Judiciary and promulgate witness and complainant protection laws to allow the judicial system to function smoothly. The criminal justice system of Pakistan needs major overhauling and immediate attention of the State’s policy makers.