Two persons, Mohsin Ali and Kashif Khan Kamran, have been in the illegal custody of Pakistan’s security agencies since 19 September 2011, i.e. for nearly four years now. They have not been produced before any court of law since their detention commenced. The people of Pakistan are aware that these two men were brought from Sri Lanka to Pakistan in September 2011, and that as soon as they arrived at the Jinnah Airport in Karachi, they were apprehended by agents of Pakistan’s military establishment. Since then their whereabouts remain unknown.
The disappearances of these Mohsin Ali and Kashif Khan Kamran have been discussed, from time to time, at different forums, including in electronic media talk shows. Though the Asian Human Rights Commission (AHRC) has not been able to independently verify the same, it has been reported that one of the suspects died in custody. According to Mr. Kashif Abbasi, anchor of prominent talk show “On the Front”, a confidential source divulged information to him regarding this custodial death,
In a press briefing on 14 April 2015, Interior Minister Chaudry Nisar Ali Khan confirmed that the two suspects remain in the custody of an agency, but that the men were not detained in connection with the murder of Imran Farooq in London on 16 September 2011. Imran Farooq was a senior member of the political party MQM. When a journalist asked whether both the men were arrested, the Minister replied that they had not been arrested but are in the custody of an agency. The Minister also declared that Mohsin Ali and Kashif Khan Kamran are innocent and poor.
Both the accused persons left the UK on 16 September 2011 hours after the murder. They flew to Sri Lanka first, before travelling to Karachi on 19 Sept 2011. Upon their arrival, before they could step out of the airport, they are alleged to have been picked up by security officials. Confidential sources have disclosed to the Dawn newspaper that UK investigation authorities had been given access to the two men, who are now likely to divulge the truth (Dawn, 14 April 2015).
Ironically, it has been nearly 4 years since Mohsin Ali Syed and Mohammed Kashif Khan Kamran were picked up and held under the unlawful custody of Pakistan’s security agencies; they have not been presented before a competent judicial authority since and no due process has been initiated in the courts. The two alleged murderers have been denied the right to be heard and are being interned at a secret location in flagrant violation of the clear direction of Article 10A of the Constitution of Pakistan.
Article 10A on the right to fair trial, states:
“… (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice.
(2) Every person who is arrested and detained in custody shall be produced before a Magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the Court of the nearest Magistrate, and no such person shall be detained in custody beyond the said period without the authority of a Magistrate.
(3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention.”
It is a mockery of the rule of law in the country that the Federal Minister for Interior Affairs has himself confirmed that these two accused men, who remain in the illegal detention of some undisclosed secret agency, are poor and innocent. The Minister has appeared to justify their continued illegal detention, as if keeping suspects incommunicado in detention for several years is the best way to obtain confession.
The Federal Minister provides a snapshot into the state of rule of law in Pakistan, which has totally collapsed; the Judiciary has been made a poodle in the name of national security. The Minister’s statement confirms that Pakistan’s secret state agencies are involved in the enforced disappearance and extrajudicial killings of thousands of persons, many of whom remain missing to this day. It indicates how the rule of law system exists as a phantom limb in the country and how supra constitutional forces are running the institutions of “law” and “justice”.
The rule of law is a misnomer in Pakistan, where the military and paramilitary chiefs dictate the rule of the land; enforced disappearances are the norm. Since the Peshawar carnage that claimed the lives of 147 school children the government and the Military have been actively pursuing militant and terrorist factions; however what the people are also witnessing is a rise in involuntary disappearances and extrajudicial killings. Many suspects in important cases are being taken into illegal custody by the agencies; such custody is never made official and no official record exists of their confinement at any official internment center. In the case of Mohsin and Kashif, the official stance has emerged only after four years, and still their whereabouts remain unknown.
If the rule of law existed in Pakistan, the Interior Minister would have filed a case of habeas corpus against the agency keeping these two men in illegal and unconstitutional confinement. During the past four year’s of their detention, the ministry of interior has however not uttered a single word about their illegal detention even while the media had been commenting and debating the matter. And neither did any other ministry or the Military contradict media speculation. Some media houses have also reported that one of the detainees had died during custody and the government has still not denied such news.
The degeneration of accountability in Pakistan and the military dictatorships has weakened the writ and rule of law in the state to the point where they rest today, at a nadir. The Abbottabad Commission, constituted after the arrest and killing of Osama Bin Laden, had aptly pointed out that intelligence agencies must not overstep their mandate. The report calls for comprehensive reforms to improve the working of the intelligence community, both in terms of effectiveness and in terms of respecting human rights and the rule of law. Sadly, like other reports calling the authorities into action, the recommendations made by the Commission have fallen on deaf ears.
The clandestine way in which the security agencies operate is not governed by any standard operating procedure, regulation, or ethics. The intelligence and military agencies are given complete impunity to administer justice through military courts, and to maintain law and order however they deem fit and proper. The rule of law has thus taken a back seat and the circumvention of due process is the norm.
The state and intelligence authorities that are holding many alleged criminals must deal with them lawfully and within the ambit of the constitutionally mandated judicial process.
How can the state so blatantly deny its citizen the right to due process?
Pakistan has ratified the UN International Covenant on Civil and Political Rights (ICCPR). And, it is appropriate to reiterate some of the basic provisions of the Covenant.
Article 9 of the ICCPR states the following:
“1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
- Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
- Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.
- Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.”
Article 10 on the other hands, sets down another basic provision:
“1. All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”
While Article 14, state the following:
“1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law.”
The intelligence agencies in Pakistan are behaving like an all-encompassing authority, an elite shadow class of persons free to operate outside the bounds imposed by the rule of law. Thus, they plunder, degrade, and cheat at will, and suppress the citizens endlessly in the name of security to fortify their own power. The military, it appears, can undermine the judicial system and the fundamental right of due process, and its actions need no endorsement from the Judiciary or the government. It is indeed horrifying that the beneath the façade of democracy, Pakistan has become a criminal state, one that usurps and infringes the fundamental rights of its citizens, endorses anarchy, and has no respect for the rule of law.
It is time the stakeholders rethink the national security policy and frame a judicious system of governance based on principles of justice, upholding, unequivocally, the fundamental rights of citizens. Anywhere, anytime, ordinary people are given the chance to choose, the choice is the same: freedom, not tyranny; democracy, not dictatorship; and the rule of law, not the rule of secret police.
The AHRC urges the Judiciary to enquire from the military establishment about the illegal and unconstitutional detention of the two men and their whereabouts. The military and its intelligence agencies must be tried in civilian courts for trampling on the fundamental rights of the detainees and keeping them incommunicado for four years without producing them before a court of law.
