PAKISTAN: Higher courts complicit in torture and killings

A Statement from the Asian Human Rights Commission

PAKISTAN: Higher courts complicit in the torture and killings in military detention centres

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://economictimes.indiatimes.com/news/politics/nation/pakistan-supreme-court-issues-notice-to-isi-and-military-intelligence-chiefs/articleshow/11639514.cms
http://www.cssforum.com.pk/general/news-articles/dawn/59371-diminished-justice.html
http://hamariweb.com/enews/in-custody-after-fourth-death-court-issues-notices-to-isi-mi_nid557829.aspx
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.

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About AHRC: The Asian Human Rights Commission is a regional non-governmental organisation that monitors human rights in Asia, documents violations and advocates for justice and institutional reform to ensure the protection and promotion of these rights. The Hong Kong-based group was founded in 1984.

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