Can SC save Balochistan?

By Faisal Siddiqi

Any functional modern state must have the capacity to administratively deliver, have superiority over the means of violence as well as political legitimacy in the eyes of its citizens. All three elements have ceased to exist in Balochistan, or at least in the life and mindset of the Baloch.

It is in the above context of the withering away of the state in Balochistan that lies the importance of the Supreme Court`s (SC) Balochistan proceedings, and its interim (not final) order dated Oct 12, 2012.

But despite the overwhelming task, what the SC`s Balochistan proceedings primarily signify is the courage, conviction and determination of the court and its three judges Chief Justice Iftikhar Chaudhry, Justice Jawwad S. Khawaja and Justice Khilji Arif Hussain.

What are the significant aspects of the Balochistan proceedings and the interim order? Firstly, during the SC Balochistan proceedings, the significance of the courtroom being constantly filled with relatives (men, women and especially children) of the missing persons and Sardar Akhtar Jan Mengal, a dissident Baloch leader, thanking the court, showing confidence in it and presenting his demands before it cannot be underestimated.

It seemed that for a certain period, the Pakistani state, as represented by the SC, became administratively functional, coercively active against human rights violations and politically legitimate for the Baloch.

Secondly, the dissenting voice of the Baloch nation was represented by the court that categorically declared that the Balochistan provincial government had lost `its con-stitutional authority to govern the province because of violation of fundamental rights of the people of Pakistan`, especially the right to life, and the `federal government except for deploying FC troops,has also failed to protect the province of Balochistan from internal disturbances` The judicial strategy deployed by the Supreme Court can be labened as the constitutional/political delegitimisation of the Balochistan government through the process of `constitutional shaming`.

In other words, the Balochistan government may continue to exist formally but in terms of public legitimacy, `constitutional shaming` has sealed its political fate.

Thirdly, for the first time during the current Balochistan crisis, a state institution `spoke truth to power` In other words, the court questioned the illegalities of the de facto rulers of Balochistan i.e. Frontier Corps (FC) and the intelligence agencies by categorically making public the dark and ugly reality about Balochistan, that `prima facie` there are serious allegations of human rights violations against the FC and that the interference of intelligence agencies in Balochistan`s affairs is `prima facie` established.

Therefore, in addition to the judicial revolt of Nov 3, 2007, this is a critically significant judico-politico development, as it may eventually lead to a Pakistan which is dominated significantly less by the military establishment.

Fourthly, the proceedings led to the recovery of some missing persons, and to a substantial reduction in enforced disappearances. This is significant because in addition to the matter of Akbar Bugti`s killing, the `missing persons issue is a key reason for the de-legitimisation of the Pakistani state, and legitimi-sation of the Baloch insurgency among the Baloch.

But are judicial courage, conviction and determination enough to save Balochistan? And can Balochistan be saved by judicial means? Firstly, the SC had similarly tried to solve the law and order problem of Karachi through a judgment dated Oct 6, 2011, of about 150 pages, which contained nearly 20 directions and declarations.

But despite some initial success, the killing fields of Karachi continue with over 1,800 killed this year.

Therefore, if the SC could not save Karachi why would the same judicial medicine work in Balochistan? Secondly, it needs to be seriously considered as to whether Karachi or Balochistan can be, or should be, saved through judicial means.

The judiciary can only be effective if the state has the capacity, and willingness, to implement its judgments. But if the state has collapsed as in Balochistan, or if de facto rulers like the FC are unwilling to implement judicial decisions, then shouldn`t the judiciary seriously consider the limits of what it can do? Moreover, given the politically, economically, socio-culturally and geo-politically complicated situation in the province, should the SC really try to solve the Baloch problem through judicial means? In other words, the limitation of the legal/judicial method in resolving complicated state and societal problems has to be recognised because in some situations, such solutions may actually lead to further complicating the issue.

Thirdly, in view of the limits and undesirability of judicial solutions to certain issues, the court may not be able to save Balochistan but it can still play an important role in the solution to its problems.

For this, it needs to ask itself two questions: which judicial orders can effectively resolve particular issues and what are the practical/political limits to judicial power; and of those issues in which effective judicial orders can be passed, which issues are critical and have priority? In this regard, four issues of priority can be identified: a) a permanent Supreme Court bench dealing with the missing persons cases; b) effective and specific orders for creating a free and fair political atmosphere for all political parties in Balochistan; c) a high-level judicial commission investigating the Akbar Bugti killing; d) suggestions for creating legal and constitutional frameworks to address the genuine grievances of FC and the intelligence agencies regarding insurgents and criminals and for providing FC and intelligence agencies with a onetime immunity from prosecution to enable the recovery of missing persons. This last issue is critical because the military establishment is in a blind alley in Balochistan and has to be saved from its own destructive policies.

Fourthly, the Oct 10 interim order should not lead from `constitutional shaming` of governments to the dismissal of (even flawed) political governments by judicial means.

This would be a very dangerous precedent.

But regardless of the above comments, it is the Supreme Court-Balochistan proceedings which have kept alive the tenuous connection between the Pakistani state and the Baloch nation. Without such a connection of trust, everything else is irrelevant.