‘Weak’ state and ‘disappeared’ people
November 26th, 2010
The attorney general of Pakistan has told the Supreme Court that the country’s intelligence agencies “could not be made respondents in any case.” He was speaking in connection with the ‘disappearance’, from Adiala jail in Rawalpindi, of 11 men acquitted by an anti-terrorism court (ATC) before they could be released. There was some evidence that they were handed over to the Inter-Services Intelligence (ISI). Both the ISI and Military Intelligence (MI) have denied that they took away the acquitted men.
Significantly, the men had been arrested and tried on the charge of an attack on the GHQ earlier this year, as well as an attempt on the life of former president General (retd) Pervez Musharraf. Now it is a case of habeas corpus, similar to the case of the ‘disappeared’ people that the honourable Court is pursuing, given the fact that habeas corpus is the foundation of criminal law and ensures legal process. If there is no habeas corpus, the state allowing people to be arrested without being presented before a court of law is often called fascist.
In Pakistan, ‘disappearance’ is said to be of two kinds. The first is the incompetence of the prosecuting agencies — the 11 men of Adiala jail were improperly ‘sued’ according to the attorney general — which has caused the release of known terrorists who have been killed after being released. The courts are not to blame: they must apply the principle of guilty beyond a shadow of doubt to all comers. And that applies to ATCs as well. The second reason is that terrorists are able to intimidate the legal and executive bureaucracy in letting them go. There are numberless cases where known killers were let off because the witnesses either mysteriously died or were cowed into reneging. There have been, no doubt, cases where the magistrate, unsure of state protection, saved his life by acquitting the killer.
The Supreme Court’s effort at putting the country back on the rails of habeas corpus is meritorious, but is increasingly coming up against the state’s much weakened writ in the face of terrorism. It has particularly faced a tough situation in Balochistan where the ‘disappeared’ people have belonged to all kinds of categories — members of private armies involved in acts of terrorism; people scared into escaping into Afghanistan during the insurgency; and those picked up by the security agencies — backed not so much by the legal community as by sub-nationalism in the province. Wherever in the world there has been uprising against the state, disappearances have been experienced.
The largest disappearances in per capita terms have been in Sri Lanka: 3,000. In Indian Punjab, thousands of secret cremations of individuals killed in police custody throughout the 1980s have been uncovered in just a single district. This is true of Andhra Pradesh and Chhattisgarh too. In Kashmir, in 1989 alone, some 7,000 people disappeared at the hands of Indian security forces. The United States organised the Guantanamo Bay camp to avoid habeas corpus. Aafia Siddiqi was not charged as an abettor of al Qaeda because that would have obliged the American government to produce 9/11 plotter Khalid Sheikh Muhammad — currently at Guantanamo — in a New York court. Cases proliferate in Afghanistan, Bhutan and in the Chittagong Hills in Bangladesh.
Letting terrorists go can be lethal. Abdullah Mehsud, let off from Guantanamo Bay, went on a killing spree in Pakistan, abducting and killing Chinese engineers working in Tribal Areas. Shia leader Hasan Turabi was killed in Karachi in 2006 after he warned that terrorists let off recently by the Sindh High Court will kill him. Speaking to Newsweek Pakistan (November 15), Punjab governor Salmaan Taseer complained that “the people suspected of involvement in the murder of the surgeon-general of Pakistan, the attempts on Musharraf, the attack on the GHQ and the attack on the Danish embassy have all been released”. There is the quaint example of Lashkar-e-Jhangvi killer Malik Ishaq whom the Punjab government keeps in custody but pays his family for it because he has been released by the court!
Demanding habeas corpus is the court’s effort to bring the country back to normal. But the process of bringing this ‘weak’ state back to normalcy requires fighting the armed terrorist who thrives on the basis of intimidation. There are two kinds of states in the ‘weak’ category: the ones that belong to the Third World roll call of disorganisation; and those that have lost their writ to embedded terrorists. Pakistan’s writ is lowest among the Third World category of disorganised states, and that too after counting Afghanistan and its warlords. There is practically no writ outside a couple of cities in Balochistan; there is no writ in most of Tribal Areas, federal and provincial; there is partial writ or ‘shared writ’ in such settled areas as Kohat and Hangu in Khyber-Pakhtunkhwa.
There are alarming comparisons here, and they outmatch other states in South Asia. Cities like Peshawar and Karachi are at the mercy of terrorists and criminals who have adopted the modus operandi of the terrorists. They have no-go areas where security agencies too are attacked. There are no-go areas in a part of interior Sindh where tribal wars take place while the police stand aside and watch. There is a 75-kilometre long stretch of River Indus before it falls into the Indian Ocean where only dacoits rule and make people disappear in Karachi for money. The dacoits from this no-man’s land actually own entire communities in Karachi where some of the ‘goths’ they established have been regularised as towns by the government.
Yet the Supreme Court’s campaign to make state agencies answerable for the people they pick up is praiseworthy and the support it has in this regard from the entire world is justified. There are additional matters pertaining to the competence of state authorities, hardened by past immunity, that are also coming to the fore. Intelligence agencies have agreed to talk to the Supreme Court to explain their position. That is the right way to go. No one is above the law.