”Quis custodiet ipsos custodes?” (Who will guard the guardians themselves), said the Roman poet Juvenal in his “Satires” [i]. The phrase has lasted through centuries and cited in different contexts but most importantly in regard to the problem of ensuring that persons and organisations entrusted with performing the functions of the state do so within the legal-constitutional ambit. In Pakistan the problem relates both to civil-military relations as well as the functioning of the state in relation to the application and enforcement of laws while ensuring that fundamental and human rights as enshrined in the Constitution are not violated.
The internal security threat Pakistan has faced since 2002, and which has resulted in hundreds of terrorist attacks, has created further tension – almost to the breaking point – between the necessity to address the threat and enforce law and the imperative of doing so without violating human rights.
For the most part this tension remains unresolved. Atrocities by the terrorist groups have often resulted in inducing a ham-handed approach by the security forces and the intelligence agencies. Lack of enough evidence has often resulted in the accused being let off by the courts. Officials express bitterness at such verdicts and their frustration, increasingly, has led to extra-judicial measures that violate the fundamental and human rights of the accused.
On January 26, 2012 in a significant ruling, the Supreme Court of Pakistan summoned the Advocate General of Khyber Pakhtunkhwa and the Directors General of Inter-Services Intelligence Directorate and Military Intelligence to appear in court on January 30, 2012 to explain how four prisoners held by the intelligence agencies could go missing from Adiala Jail and then be found dead. The Supreme Court has given this order following the admission of a petition by a woman whose three sons had been arrested by intelligence personnel for their alleged role in the October 2009 attacks on the army’s General Headquarters (GHQ) and the ISI’s Hamza Camp in Rawalpindi. In her main petition, Ms. Rohifa prayed that her sons Syed Abdus Saboor, Syed Abdul Basit and Syed Abdul Majid along with eight other accused had been kept in illegal confinement by the intelligence agencies that had acknowledged keeping them in their custody. Abdus Saboor, the son of the petitioner Rohifa, is the fourth accused in the case to have died in mysterious circumstances. Saboor’s brother has alleged that the four men, including his brother, were killed in confinement through torture and slow poisoning. [ii]
In December 2011, when the court was hearing an earlier petition for the recovery of the three brothers charged under Section 2(1) (d) under the Pakistan Army Act 1952, the Military Intelligence told the court that the detainees were in their custody and had been kept “in accordance with the law”. Since then four of the accused have ended up dead. The bodies were dumped by the roadside and according to the petitioner’s counsel this was done after the Lady Reading hospital in Peshawar refused to accept the bodies.
The issue, as noted by the 3-member bench of the honorable court, is of grave concern. Firstly, if it were proved that the detainees were killed by the intelligence agencies while in custody, then, as the Chief Justice of Pakistan, Justice Iftikhar Chaudhry has noted, this would amount to “murder” which is a “grave issue.” Not only would this be a violation of the right to life, the right to a fair trial and numerous other fundamental human rights enshrined in the Constitution of Pakistan, it would also be violative of international conventions and treaties such as the Universal Declaration of Human Rights (UDHR) and United Nations Convention Against Torture (UNCAT) to which Pakistan is a signatory.[iii]
Secondly, the detainees had been acquitted of the charges against them by an Anti-Terrorism Court in Rawalpindi on April 8, 2010 due to insufficient evidence brought against them. However, they were picked up by the intelligence agencies despite the ATC’s verdict.
The legal cover for this was provided by the Rawalpindi DCO under Maintenance of Public Order Ordinance. Later, the men’s detention was extended for 90 days by the Punjab home secretary. However, on May 6, 2010 the Lahore High Court’s Rawalpindi bench set aside both orders following a habeas corpus petition. The court also ordered that the accused be released. The LHC order was never complied with and the detainees were taken to an unspecified location by the intelligence agencies.
Finally, the very charge brought against the detainees was under the Army Act 1952, which is generally used to try civilians for treason and sedition but during General Pervez Musharraf’s tenure was also used to try civilians for “assaulting the president with intent to compel or restrain the exercise of any lawful power.”[iv]
The allegedly unlawful and deliberate execution of these four men without accountability is yet another reminder of the tension between law enforcement and human rights. While the issue has been agitated by rights groups, so far jurists and other experts have made no serious effort to debate the issue and come up with an acceptable legal solution. All that has been done is to extend the detention period and to make the anti-terrorism legislation more stringent. Far from resolving the tension, or finding some kind of balance, these efforts have only loaded the dice further in favour of state agencies and against the fundamental and human rights of the citizens. Activists have been agitating forced disappearances of people in Balochistan – most of whom end up dead – political activists in Sindh and seemingly innocent civilians that are allegedly picked up by the intelligence agencies and kept in unspecified locations without any trial or record. [v] According to the Human Rights Watch’s World Report 2012 since the beginning of 2011, human rights activists and academics critical of the military have also been killed in Pakistan. [vi]
When Abdus Saboor’s ailing mother Rohifa filed a petition in the Supreme Court on January 6, 2012, she pleaded before the SC that if the courts could not provide her relief, the intelligence agencies may be asked to immediately kill her remaining two sons, both in custody, so she could at least bury them before she dies herself. Her emotional statement has shaken people. But apart from the inevitable emotional content of this case, it also throws up complex legal and constitutional issues that need to be debated and adjudicated upon in light of multiple internal security threats faced by Pakistan.
The SC is now seized of this matter and it is sub judice. But broadly speaking, this case, like many others, not only reflects the tension between the enforcement of law and human rights, but it also manifests the civil-military imbalance that has come to define Pakistan and its principal contradiction. Unless a concerted effort is made to address the issue of creating and sustaining a balance between enforcement of laws and regard for fundamental rights of the accused, this will not be the last case of its kind.
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[i] Juvenal, Satire VI, lines 347–8
[ii] Dawn News ( 2012, January 26), Iqbal, Nasir ”SC Summons AG and Chiefs of Army”
[iii] Mst. Sughran v Station House Officer,Lahore High Court ,2008 YLR 2603; Ali Abbas v SHO Police Station Shah Kot Lahore High Court, 2008 PLD 564
[iv] Section 2(1)(d) of Pakistan Army Act 1952 incorporating Section 124 of the Anti-terrorism Act, 1997 (XXVII of 1997)
[v] HRCP( June, 2011) ”Balochistan: Blinkered Slide into Chaos”
[vi] Human Rights Watch ( 2012) World Report, page 362
