Not so ‘missing’ after all

It is now clear that no one can remove himself from the obligation of habeas corpus — even a terrorist.

State intelligence agencies, formally and informally related to the military, have told the Supreme Court that 11 acquitted persons who were whisked away from Adiala jail in April this year are in their custody. Earlier, the attorney-general of Pakistan had ‘mistakenly’ taken the position that the Supreme Court had no jurisdiction in the matter. We should all congratulate the Supreme Court as well as the army for resolving this case of ‘missing persons’. If there was any ambiguity of jurisdiction — there was a case in the 1990s involving the disappearance of a journalist in which a Lahore High Court judge was unclear about it — it has been removed. The lawyer representing the agencies has clearly accepted that the army was not exempt from the jurisdiction of the Supreme Court. And that is no small matter.

There are other positive aspects of the ‘admission’. The relatives of the 11 persons picked up by ‘someone’ are relieved that their loved ones are alive. The Court has asked the agencies to arrange for a meeting between them, a remarkable new progress in a process that had remained mysterious so far. It is now clear that no one can remove himself from the obligation of habeas corpus — producing the arrested person before a court of law — even if the said person is a terrorist.

No matter if there was a bit of evidentiary jugglery involved. The agencies’ lawyer told the Court that the people who took away the acquitted terrorists were their accomplices, pretending to be members of the ISI. His said the terrorists had escaped into areas called ‘operational’ and had been re-arrested. It was also revealed that they will now be court-martialled, which is a muffled correction of the verdict of the anti-terrorism court which had let the terrorists go free.

The honourable Court will be inclined to look again at the crimes the 11 ‘disappeared’ were accused of: killing the former surgeon-general of the Pakistan Army, Lt-Gen Mushtaq Baig; attacking the bus of an intelligence agency in Rawalpindi and the main entrance of the GHQ; and carrying out a rocket attack on the Pakistan Aeronautical Complex, Kamra. How is it possible that a group accused of such heinous acts was not nailed by the prosecution and were therefore acquitted by the judge?

When confronted with terrorism, most states have a tough time reconciling legal procedures with the emergent need of putting an end to violence and its perpetrators. Given the fact that our police is not up to par in regard to prosecution, many criminals are allowed to go scot-free, which in turn leads to the phenomenon of mob action by the public in which the captured thieves are often done to death. The US was faced, with the problem of the standard of evidence required by US courts. It created Guantanamo Bay to avoid being forced to present the terrorists it captured to a normal New York court.

The army will now court-martial the 11 captured by it and subsequently acquitted. This would be justified as the law allows it. The net gain from this approach of the army is embodied in the assertion by the lawyer of the agencies that the army is not above the law and not exempt from the jurisdiction of the Supreme Court.

This may also mean that many other cases, where the ‘disappeared’ persons are still not found, will find closure with the help of the Supreme Court functioning in tandem with the army. A lot of people have disappeared from Balochistan, and they could include those who adopted terrorism as their modus operandi. Those who have killed Pakistanis and fought our army while siding with terrorists will have to be dealt with seriously. Given the fact that Pakistan is a weak state with no writ in vast areas of the country, it is difficult at times to determine with precision why the ‘disappeared’ people remained that way.

Published in The Express Tribune, December 11^th, 2010.