AHRC-ART-003-2012
February 2, 2012
An Article by the Asian Human Rights Commission
PAKISTAN : The courts and the government bear responsibility in extrajudicial killings in military torture cells
The disappearances, killings in military detention centers and dumping of bullet-riddled bodies including torture marks on the bodies of the victims, by the spy agencies particularly by ISI and military intelligence are no longer a secret. This was exposed during the case of Abdul Saboor (29), which was taken in custody illegally by the military authorities, after picking him from prison two years ago. He died in military custody this year allegedly following torture and poisoning, according his mother and his lawyer. (see below to read more details )
Eleven prisoners went missing in 2010 from Adiala Jail. They were suspected terrorists who were arrested on allegations of involvement in an attack on former president General (retd) Pervez Musharraf, attacks on Kamra and Hamza Camps, GHQ, and possession of suicide jackets, but were later acquitted by an Anti-Terrorist Court. In spite of their acquittal, they were not released. The Lahore High Court (LHC) again ordered their release, following which they were allegedly picked up by the intelligence agencies. There was speculation that they were ‘handed over’ to the intelligence agencies by the Adiala Jail authorities. This was in 2010. In 2011, a senior law officer of the GHQ admitted that the prisoners were in their custody. The advocate general explained that they were formally arrested in April 2011 and a case had been registered against them under the Pakistan Army Act, 1952. Apparently, four of the 11 abducted prisoners have died in custody. A missing person petition has been filed in this regard. The SC issued notices to the defence secretary, ISI and MI director generals (DGs) and judge advocate general (JAG) of the GHQ. In the same case three more suspects of attacks on military installations were killed and their cases were also in the courts.
The Pakistan army and its intelligence agencies enjoy immunity, not only from the government, but also from the higher courts who still claim to be an independent judiciary.
The Supreme Court’s attitude in cases related to the military human rights abuses is evidently different than its attitude when the case involves civilian authorities. This became visible during the hearing of a constitutional petition filed by Ms. Rohaifa, the mother of three men who were arrested by the military and charged with an attack on military installations. One of the three detained sons was killed while in custody of a military detention center. This was after the Chief Justice requested the counsel for the military and its spy agencies to allow the family members of the admitted prisoners in the hospital to meet their missing ones. The Chief Justice was very humble in his request, saying : « If it was possible to arrange the meeting of the relatives with four missing prisoners admitted to Lady Reading Hospital, Peshawar ». The request from the CJ implies that it was not a right for the family members to meet with the prisoners who have been missing for two years after having been acquitted by the Anti-Terrorist court.
The Supreme Court (SC) bears responsibility in the killing of four persons while in military custody. Indeed, the court had been previously informed of the situation in January 2011, as a petition was filed stating that eleven suspected prisoners had been taken by the spy agencies of military from the Adiala Jail of Rawalpindi city, Punjab province. This arrest was in spite of having been acquitted by a lower court in 2010 from the charges of attack on military installations, including the General Head Quarter of Pakistan Army. Nevertheless, the Supreme Court unconditionally allowed the military to try the prisoners under the Army Act, 1952. Since last year the court has never inquired about the developments in the trial of the eleven suspects but was aware that four persons were tortured to death in military custody. When the mother of Abdul Saboor filed the petition in the Supreme Court showing apprehension that her sons would be killed, as three other co-chained persons had been killed previously, the registrar raised objection on the petition giving the captors sufficient time to eliminate Abdul Saboor.
In the last proceedings, the court tried to appeal to the media and when counsel from the military side asked for time for submitting his argument, the Chief Justice and other judges loudly said that they would not grant an extension. Then, contrary to their statement, they gave an additional ten days time to produce the remaining prisoners in the court.
The government too has proven itself subservient to the military. It is fully aware of the existence of illegal detention centers all over the country and of the way in which the military’s intelligence agencies operate, abducting and keeping persons incommunicado. The government is also fully aware of how the detainees are tortured because most of the leadership passed through the barbarous methods of the military and ISI. This is nothing less than criminal negligence on the part of the government as it is not prepared to either investigate or halt the extra judicial killings, disappearances and torture ongoing in the country.
The president of Pakistan has also been a victim of military conspiracies and was detained for eight years, during which he was tortured. But the domination of the military in the political affairs of the country is so deep and strong that the government cannot act to save the lives of innocent people in custody of the army. The army, armed forces and their intelligence agencies have become an Italian-styled Mafia who can take anybody even from the prison, even if they have been released by the courts, and can then torture and kill then before dumping their bodies on the road sides. And they do this with impunity from the courts and the government.
What the counsel of the military and its intelligence agencies did during the last hearing of the case of Abdul Saboor was nothing less giving an order as a master, mandating the Supreme Court to consider his plea to delay the case favorably. The military had never paid any heed to the courts. The courts have followed suit and never passed any order against the military. The most revolting aspect of the last court proceeding was that the court had to decide whether the killing of a missing person in custody constitutes an abuse of his fundamental rights under article 184 (3) of the Constitution. It failed to concede that filing a petition on the killing of one son and asking to know the whereabouts of the other two sons are the fundamental rights of the mother.
Article 184 (3) of the constitution does not have jurisdiction over the Army Act and courts have always thought that army and its laws were above the constitution, that is why courts never conceded to review the jurisdiction of Article 184 (3) to extend it to cover the Army Act.
The Supreme Court acted very differently in the case of the famous Memo Gat Scandal, when the army chief and the ISI chief filed a statement against the former Ambassador. In that case, none of the fundamental rights of the Army had been at stake, which the court could not ignore and the counsel for Ambassador made a long and persuasive argument that that case did not come under article 184 (3) of the constitution. However, as the matter concerned the Army and its chief the court was very obliging to extend all its cooperation to its past masters.
The question to be raised is the following : how do the courts intend to stop extrajudicial killings and torture when they are quite happy to kowtow to the military and the intelligence services ? There is no independent judiciary in Pakistan at the present time and the shame for this situation must fall squarely on the shoulders of the Chief Justice, who is in his present post today because of the sacrifice of the people of Pakistan. The same may be said for the government who has totally failed to control this mayhem. The people who are being tortured and killed are the same people who voted them into power.
The situation in Balochistan is the best example of the chaos of the rule of law. It is a land where the rule of law is not allowed to operate and all law enforcement is left to killers. No one knows how many more will be killed in the coming days ? All that is known is that the people of Balochistan have to bury the mutilated bodies of their loved ones almost every day of the week.
Under the present laws, in the presence of a judiciary which was appointed and restored by the orders of the chief of army staff and of a subservient government, it is not possible that the issue of mass disappearances and illegal detention centers run by the military can be solved. In coming days this issue of disappearances may become more critical and serious. This situation demands strong action from the international community to raise its voice collectively to call for the government of Pakistan to rein in the military and reassert itself as being in charge. This will be possible only when Pakistan will have a truly independent judiciary that will assert itself to extend its jurisdiction over the military and its laws.
Baseer Naveed
PAKISTAN : Higher courts complicit in the torture and killings in military detention centres
January 27, 2012
Four men were killed in military detention centres while their cases were being heard in the higher courts and particularly one case was in the Supreme Court. The Supreme Court, which claims to be the independent, when it comes to the army the courts usually put aside the cases against army or delays the hearings.
In a recent case Mr. Abdul Saboor (29), was killed in a military detention centre and his body was thrown on the road side by intelligence personnel. His case was pending before the higher courts since last July. His mother filed a case that her three sons were in military custody and she was apprehensive that they would be killed during torture but the court delayed the case due to the involvement of the military. When three other detainees were killed in military detention centres, the mother of Abdul Saboor filed a petition in the Supreme Court that her three sons might have been killed in military custody and at least their bodies should be returned to her.
The registrar of the Supreme Court, seeing the petition against the military establishment, made objections to it and sent it back to the petitioner for correction which took more than one week’s time and during that period the body of Abdul Saboor was found from the Peshawar city, Khyber Pakhtoonkha province.
This is not the first time that the registrar of the Supreme Court has delayed matters by returning petitions in cases involving the military’s abuse of human rights. This practice has been followed in the cases of disappeared persons when the family members of the victims filed petitions against the military and its spy agency, the ISI. In the recent case of the so called Memo scandal the registrar did the same thing when the former Ambassador filed the review petition against the decision of the Supreme Court larger bench which did not hear the Ambassador before passing the decision against him. The registrar’s act was to hinder any petition against the role of the ISI chief.
Saboor is the fourth civilian detained in the case to die under mysterious circumstances in the last six months. Eleven prisoners convicted of attacking the Pakistan Army’s General Headquarters in Rawapindi and the ISI’s Hamza Camp, had gone missing from the Adiala Jail, and four were later found dead. Suspect Mohammad Aamir died on August 15 last year ; Tahseenullah died on December 17, and Said Arab on December 18, 2011. Their cases were pending before the High Court since July 2011.
The details of the extrajudicial killings of Mr. Abdul Saboor and the other three persons in the military torture centers can be found from the following links to articles which appeared in daily newspapers and websites ;
http://tribune.com.pk/story/326946/adiala-prisoner-deaths-sc-puts-isi-mi-chiefs-on-notice/
http://pakobserver.net/detailnews.asp?id=137214
http://m.oneindia.in/news/2012/01/26/pak-sc-issues-notice-to-isi-military-intelligence-chiefs.html
http://www.cssforum.com.pk/general/news-articles/dawn/59371-diminished-justice.html
http://www.dawn.com/2012/01/21/ghq-isi-camp-attacks-fourth-detainee-found-dead.html
http://www.thenews.com.pk/TodaysPrintDetail.aspx?ID=88879&Cat=7
http://www.silobreaker.com/pakistan-11_81046
http://www.dailytimes.com.pk/default.asp?page=2012%5C01%5C26%5Cstory_26-1-2012_pg7_2
During the case hearing on January 25, when the Chief Justice of Pakistan, Iftikhar Muhammad Chaudhry learned that the fourth prisoner Mr. Abdul Saboor was also found dead in military custody said that when this case was brought before the SC, the court was told that the prisoners are under the custody of intelligence agencies and are being tried under the Army Act. He went on to say, ’’Now, four of them are dead. It must be found out how they died.’’
The man’s innocence is astounding ! Mr. Chaudhry was well aware that the cases of all 11 persons are pending in the higher courts and even in his court and the only thing he could say was, "It must be found out how they died.’’ During the hearing he was using ’’if’’ for the killings in the custody, he said ’’if it were true that the four prisoners were killed, if they have been murdered, then this is a grave issue.’’ However, the most pressing question is, as the Chief Justice was well aware that the people were in military custody at the time they were killed, why is he not immediately calling for an investigation into their actions. The use of ’if’ can no longer be justified.
Still the Supreme Court has covertly or overtly ignored the basic questions to raise, these being, 1) why was the Army keeping these eleven detainees illegally in custody for a long time ? 2) According to which law were they being held ? 3) Have any of these detainees been produced before a court according to the provision of Article 10-(1) and (2) which states that every detained person should be produced before a Magistrate within 24 hours of his arrest ? 4) Is the Army Act superior to the Constitution of Pakistan ? 5) Why did the agencies re-arrest them from the prison without any legal authority after their release was ordered by the court ? 6) Why did the apex court, although committed to its role as upholder of the rule of law, not intervene in this matter of civilians being tried in military courts ? And 7) Why has the Supreme Court never invoked article 9 (the right to life) of the Constitution in the cases of forced disappearances and extrajudicial killings ?
The lawyer of the deceased Mr. Abdul Saboor has shown his dissatisfaction of the proceedings of the court on different television channels. In his dismay he said that he was very much involved in the restoration of the Chief Justice and the struggle for the independence of the judiciary. He has stated publically that he has lost faith in the judiciary and feels that there is no chance to obtain justice in Pakistan.
As a usual practice the court has put the next hearing back to January 30 to dilute the anger of the families of the missing persons. This is contrary to their normal practice as when cases against the civil government or parliament are presented the court forms a full bench, but here no such thing has been initiated. This may be because of the mindset that the Pakistan Army has sanctity before the courts as it is above the law.
The family members of the disappeared persons from Balochistan have also been disappointed by the role of the Superior courts and the Judicial Commission on the matter of disappearances. The family members and their organization, the Voice of Baloch Missing Persons have clearly announced in the Supreme Court of Pakistan in the month of August that they would not attend the court proceedings as nothing is forthcoming from those court proceedings. They continue to boycott the proceedings of the superior courts as they are only passing remarks but not forcing the military and the ISI personnel to be presented in the hearings.
Many journalists, human rights defenders and political activists have been extrajudicial killed and it is common knowledge that they were taken into custody by the ISI and the military but not a single case has been taken up by the ’’independent judiciary’’ — the reason for this is unknown to the citizens of Pakistan.
When the courts have the choice to pick and choose the cases they wish to try then it means that justice depends on the whims of the judicial officers. This can only increase the chaos of the rule of law.
The Asian Human Rights Commission urges the judiciary to prosecute the officials from the Pakistan army and Para-military forces who are responsible for keeping the people under their illegal custody. The Constitution of Pakistan should be followed by all the security agencies and no one should be dealt with under the law as being superior to the Constitution. All those institutions who have been accused by the family members of disappeared persons must be properly investigated and prosecuted.
AHRC