The Chief Justice of the Peshawar High Court has claimed that 1,500 missing persons were recovered and sent home as a result of the steps taken by the judiciary while a further 1,000 missing persons had been traced and were found to be in the custody of the security forces. They can now meet with their families. He was addressing the members of one of the Bar Associations of Khyber Pukhtoon Kha province.
If this statement of the Chief Justice is taken on face value it is very heartening that with the efforts of the higher court of a province, which remain under the attacks of Islamic militants and subsequently the result of military actions, 1,500 missing persons have been released. If this is the case then the human rights movement appreciates the actions of the highest judicial body of that province. However, when we look deeper into the situation the matter is far more complex and the courts do not come off looking so good.
Taking the recent steps of the High Court as a good omen for the recovery of the disappeared persons who were under the illegal detention of law enforcement agencies, the Asian Human Rights Commission (AHRC) has questions about the further detention of missing persons also known to be in the custody of the security forces.
It is unconceivable that the security forces, which have kept the recovered missing persons for several months incommunicado and tortured them to get required results, have been given rewards by the same High Court for disappearing them in the first place. This means that the High Court or its Chief Justice approves of the illegal acts of arrest and disappearance by the security forces and encourages them to retain in custody persons for further investigation.
When it was established that 1000 persons were disappeared by the security forces the question must be asked as to why the concerned officials were not prosecuted for holding a large number of citizens incommunicado. Is it not tantamount to confirming that the security forces have the authority to act illegally and humiliate the law of the land which holds that involuntary disappearances are illegal under the Constitution of Pakistan? Who is responsible for the miseries faced by disappeared persons and their family members? Has the Chief Justice asked the security forces to produce all those 1000 persons before the court? Has he referred their cases to lower courts for the prosecution of their alleged crimes? Has any court asked from the victims or enquired as to whether the victims of incommunicado detention were subjected to torture and if so, what taken action has been taken against such custodial torture? May we ask the Chief Justice to answer the simple question as to which law allows the security forces to keep persons incommunicado for indefinite periods without trial?
It is strange and even unacceptable to know that the courts are also acting supra constitutionally in allowing the security forces to hold disappeared persons for long periods of time. It is further quite shocking to know that the court is aware that these people are being tortured and yet it has not taken any action to prosecute the military and intelligence personnel responsible.
It is again unacceptable that the courts who are supposed to be the guardians of the law and Constitution are unaware or naive about the legal authority granted to the police. It is the police of the land that have the legal authority to arrest, detain and investigate people suspected of having committed an offense. There is no provision whatsoever in the laws of the land that grants these same powers to the military and intelligence agencies. The recent action of the Peshawar High Court is a reflection of the old mindset of the judiciary when it had friendly relations with the military for allowing them to try detainees in military courts. This practise has been allowed to continue by the Peshawar High Court turning a blind eye to the actions of the military.
The Chief Justice in his statement claims that 1,500 missing persons have been recovered through the efforts of the court. But no information is available on any action taken by the court against the parties that made these people disappear for several months. In order for these people to have been recovered it stands to reason that there is ample evidence to prove as to where they were being held and who was responsible for holding them. As this evidence exists why then have these parties not been prosecuted? There is no record of any military or intelligence personnel attending court to explain or attempt to justify the enforced disappearance of the victims. Likewise there is no record of any court interviewing or questioning the detainees to find out if they have suffered torture and ill-treatment. It is more than evident that the reason behind the disappearances as opposed to legally arresting the suspects is so that they can be tortured and held indefinitely. If anyone dies as a result of torture their bodies can simply be disposed of and no one will be held accountable as there is no record of them having been detained. This then perpetuates the extrajudicial and encounter killings that are a part of life in Pakistan.
In a similar case the Deputy Attorney General revealed in the Sindh High Court that two missing persons were found to be in the custody of the ISI, the notorious military intelligence agency, and were being held in Peshawar. As their detention was clearly illegal why then was no action taken against the ISI? As in the Peshawar High Court, the Sindh High Court can now proudly claim that they have recovered two missing persons. This is nothing less than a shameful mockery of the legal system and the misery of the missing persons and their families.
The statement by the Chief Justice of the Peshawar High Court is nothing more than a public relations attempt to clean up the reputation that they, and many other courts of the country have, of being pawns of the security forces. The judges are more concerned about keeping the media well fed with happy stories than they are about upholding justice, the rule of law and the laws of the land.
