In the case of the eleven missing persons, among them four have died in military custody due to systematic torture. The Supreme Court had ordered the military and its intelligence agencies, the ISI and military intelligence agency (MI) on February 2 to produce the remaining seven detainees before the court on February 10. However, this order by the country’s highest judicial institution was totally ignored. On February 11, the military again flagrantly ignored the order thereby intentionally humiliating the three member bench of the court, headed by Chief Justice Iftikhar Mohammad Chaudhry. This was a clear message to the judiciary that the military and any of its agencies does not fall under the jurisdiction of the Constitution of Pakistan and the law of the land.
Mr. Asad Tariq, the counsel for the petitioner, Ms Ruhaifa whose three sons are presently detained, one of whom was killed by severe torture and poisoning, has pleaded several times before the court that the military authorities always ignore the orders of the Supreme Court. Mr. Tariq therefore requested that a contempt of court order be passed against them but the Chief Justice and his partner judges ignored the request. The three member bench had said many times that they would wait for the production of the detainees and the counsel for the military, ISI and MI has consistently made excuses such as inclement weather. Despite this lame excuse and many others the judges have remained silent.
At the end of the day, for reasons known only to the Chief Justice and his judges, the judiciary has bowed down before the power of the armed forces and particularly that of the ISI. The court has again fixed the date for the production of the detainees for February 13 as the judges had no option but to accept the arrogant behaviour of the military officials.
This is not the first time military authorities have ignored the orders and decisions of the superior courts in the cases of missing persons. The courts, particularly the Supreme Court and Chief Justice, had always tried to take a lenient attitude towards the military in the cases of missing persons. However, the judges of the higher courts have always taken a hard line towards the military when the petitioners have pointed out that their family members were picked by the agents of the spy agencies and Frontier Corp (FC), a paramilitary organization. However, these actions were for the consumption of the media which highlight the remarks out of all proportion. Contrary to this so-called hard line the courts never order action against the intelligence agencies. This is despite the fact that in many cases the disappeared persons, when released, testify before the courts that they were kept in military torture cells and severely tortured. It is the very failure of the superior courts to take action against the abductors that offers impunity to the military and intelligence agencies. And as long as this continues so too will the disappearances.
Indeed it is this very inaction in the cases of missing persons which encourages the supra-constitutional forces to use the illegal means of keeping people incommunicado and killing them in the detention centres. It is no secret that the military and its spy agencies are involved in wide spread disappearances and the military has sent a clear message to the government and the judiciary that no one should interfere in its affairs.
It was only a few years ago that the people of Pakistan came to the aid of the judiciary and demonstrated valiantly for the restoration of the Chief Justice and a dependent judiciary, sometimes at great personal cost to themselves. Today, these same people are asking themselves the same question: where are the Chief Justice and the judiciary when it comes to fighting for their right to justice and fair trial. Again, this is the time for the higher judiciary, particularly the Supreme Court to live up to the expectations and hopes of the people. It is only the judiciary that can stop the menace of disappearances and this will only happen if the military is brought under the jurisdiction of the courts.
The Supreme Court must implement the findings of the report of Commission for missing persons headed by Justice Kamal Mansoor Alam which has recommended that, “In order to put an end to the issue of enforced disappearances/missing persons, the intelligence agencies should be restrained from arbitrarily arresting and detaining anyone without due process of law. Generally, it would be appropriate if the government evolves a mechanism for intelligence agencies to share information and leave it to the police to make arrest and proceed under relevant law/Anti-Terrorism Act (ATA). Fortunately, Anti Terrorism Act (ATA) provides for Joint Investigation Teams (JIT), which will definitely provide opportunity for a case to reach its lawful conclusion. It also said that in a few cases, it has also been observed that police officers commit intellectual dishonesty by registering fake FIRs against the persons who are picked up by the intelligence agencies and handed over to the police after a long time”.
The case of these eleven missing who remain in military custody needs a thorough investigation and proper prosecution of the perpetrators. In the presence of a powerful military there are chances of a miscarriage of justice because of loss of evidence and the soft attitude of judicial officers towards the ‘Pak Army’. It is time for the Chief Justice, Iftikhar Mohammad Chaudhry to live up to the faith that the people of Pakistan showed in him and prove once and for all that justice is for everyone. It is time for him to prove that ‘justice is seen’.
