Why is it that judges in Pakistan seem completely unable to apply the fundamental legal principle of habeas corpus and order police or military officers to produce detained or arrested persons in court?
In the latest hearing on persons alleged to have disappeared after being detained by state officers, the Sindh High Court on January 16 complained that the provincial and federal governments had failed to cooperate in meeting its orders to produce the ten persons. Its division bench instructed both the attorney general and advocate general to appear in person at the next hearing on January 24.
Why did the court not go to the heart of the matter and issue an order direct to the Pakistan Army? It is the army that is alleged to have kept the ten in custody before they disappeared. The court has heard so itself. Saleem Baloch deposed on 29 December 2006 that he was detained and tortured by army operatives for ten months, giving the names of the accused military officers, their designations, places where he was tortured, and names and registration numbers of their vehicles: all of which has been published in newspapers throughout the country. Despite this, the court has failed to move the case forward.
The Supreme Court is no better. Affidavits of some 116 forced disappearances remain pending there. The complaints relate to persons arrested from their homes by army intelligence personnel, whose families have been told from time to time that their relatives are in the custody of the military, but whose faces have never been shown in court. The judges here too have failed to meet their obligations to those complainants, at every hearing giving new dates for testimony, and passively listening to the same state officers come and parrot identical denials over and over again.
Family members of victims have justifiably taken to the streets in protest, but have been met with disinterest and hostility by the various authorities. At a demonstration before the army headquarters last December 27 the police stripped one young man, Mohammad Bin Maqsood, whose father Maqsood Janjua is among the disappeared, and beat him severely before thousands of people, after which they arrested him. Again despite the story topping the national news, it has received no attention from the courts.
The most infamous case of abduction and disappearance before the courts goes back to 1996. The entire family of Manno Bheel, a bonded labourer, was then allegedly locked in the private jail of a landlord in Sindh, Atta ullah Marri. The case has been before the Supreme Court since 2005, and although the court ordered the arrest of the landlord, it has failed to recover the victim’s family due to the complicity of the accused and local police. The senior officer responsible for Marri’s arrest was subsequently transferred out of the area, but was reinstated to his former position on the court’s orders. He himself was threatened by other police, his house ransacked and he was forced to flee. The highest court in Pakistan has been unable to enforce its orders, the case is at square one, and Manno Bheel has lost his family.
To the knowledge of the Asian Human Rights Commission, despite the hundreds of habeas corpus cases before the courts throughout Pakistan, not a single person has been released from the custody of the state by their efforts. The courts fail to pay attention and take action on even the most blatant cases and most detailed complaints: even former detainees testimonies fail to have an effect. As a consequence, the writ of habeas corpus, that most fundamental principle to the rule of law and human rights, is all but meaningless in Pakistan today.
The Asian Human Rights Commission calls upon the judiciary of Pakistan to restore–in practice, rather than on paper–the right to be produced before a court on a complaint by a concerned party: restore the meaning to habeas corpus. Take the proper and necessary actions in each and every complaint of disappearance that comes before the courts; cease to postpone and subvert your own authority in order to give time to the alleged perpetrators. Make further orders to see that those that have gone unfulfilled are properly acted upon.
Without resolute words and deeds from judges, police and soldiers will remain unimpressed and at ease, no matter the extent of their alleged abuses, and the number of cries from around the country against them. People in Pakistan expect and deserve better: it is beholden upon the judiciary to provide it.
