By Sheikh Asad Rahman
January 02, 2012
If the recommendations of the Hamoodur Rehman Commission had been implemented and responsible military and civilian officials duly held accountable, tried in courts and punished, citizens in Balochistan would not be facing genocide today
Fundamental and human rights violations take place every day in Balochistan. In the past year over 300 mutilated bullet-riddled bodies of Baloch political leaders, workers, activists, students, teachers, lower grade public servants, have been dumped at desolate places or roadsides. Sectarian violence, especially targeting the Hazara Shia community (hitherto unknown in Balochistan and only in the past three years), and ethnic violence has seen an unprecedented rise. Most of these bodies are of missing persons (Baloch sources claim over 1,300 missing) who had been abducted by the perpetrators years ago and some recently. The families of the missing persons have been demonstrating, rallying in front of the Press Clubs of Quetta and even Islamabad trying to secure some information about their whereabouts but to no avail. Hundreds of cases are pending in the Balochistan High Court but no perpetrator has so far been identified leave alone docked.
In the past three years there have been credible fact-finding reports by the Human Rights Commission of Pakistan (HRCP) and Asian Human Rights Watch (AHRW) pointing to actions of the security agencies in the perpetuation of this violence that can be termed crimes against humanity and violation of constitutionally mandated fundamental rights. There are eyewitnesses in most cases of abduction but they are unwilling to expose themselves to a very real threat to their lives. The police surgeon, Dr Baqir Shah, whose forensic examination pointed to unwarranted shooting and killing of five unarmed foreigners by Frontier Corps (FC) soldiers in the Kharotabad incident, was shot dead the other day by unknown assailants. Since an impartial investigation into his murder is unlikely as in so many other cases, this murder will also remain unsolved like the hundreds others.
Balochistan’s governor and chief minister have publicly declared that the FC is running a parallel government not answerable to the civilian government and answers only to GHQ. To clarify the status of the FC, it is a paramilitary organisation, ostensibly reporting to the provincial government where it is acting in aid of civil power but practically being led by serving army officers who report directly to GHQ, where the officers’ loyalties lie. Considering the prime minister’s assertions on the floor of the National Assembly of a state within a state, the provincial chief minister’s and governor’s statements reinforce the prime minister’s assertion. The question, therefore, arises how is it possible for a security state to exist within a constitutional and democratic state? For understanding this we need to go to the root cause; the basic law of the land that defines the people’s fundamental rights and parameters of the institutions.
Article 245: Functions of Armed Forces reads: “(1) The armed forces shall, under the directions of the federal government, defend Pakistan against external aggression or threat of war, and, subject to law, act in aid of civil power when called upon to do so. (2) The validity of any direction issued by the federal government under clause (1) shall not be called in question in any court. (3) A high court shall not exercise any jurisdiction under Article 199 in relation to any area in which the armed forces of Pakistan are, for the time being, acting in aid of civil power in pursuance of Article 245: Provided that this clause shall not be deemed to affect the jurisdiction of the high court in respect of any proceeding pending immediately before the day on which the armed forces start acting in aid of civil power. (4) Any proceeding in relation to an area referred to in clause (3) instituted on or after the day the armed forces start acting in aid of civil power and pending in any high court shall remain suspended for the period during which the armed forces are so acting.”
In simple parlance this means no action of the armed forces acting in aid of civil power can be challenged in any high court while clause (2) says clearly that no court, even the Supreme Court, can question the federal government’s calling the armed forces in aid of civil power.
This unbridled and carte blanche authority without any checks, balances or accountability leads to the violation of the following fundamental rights. Article 9: Security of Person reads: “No person shall be deprived of life or liberties save in accordance with law.” Article 10 reads: “Safeguards as to arrest and detention. (1) No person who is arrested shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice. (2) Every person who is arrested and detained in custody shall be produced before a magistrate within a period of 24 hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate. (3) Nothing in clauses (1) and (2) shall apply to any person who is arrested or detained under any law providing for preventive detention. (4) No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorise the detention of a person for a period exceeding three months unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of three months, unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is, in its opinion, sufficient cause for such detention. “
Article 10A: Right to fair trial reads: “For the determination of his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” Article 14: Inviolability of dignity of man, etc, reads: “(1) The dignity of man and, subject to law, the privacy of home, shall be inviolable; (2) No person shall be subjected to torture for the purpose of extracting evidence.”
It is, therefore, imperative for parliament to review articles and clauses that allow the violation of fundamental rights in peace time leave alone in an emergency. Parliament must have oversight over the actions of the armed forces and the superior judiciary, the Supreme Court and the high courts need to be empowered to hold to account gross fundamental and human rights violations allegedly committed by the armed forces. If the recommendations of the Hamoodur Rehman Commission had been implemented and responsible military and civilian officials duly held accountable, tried in courts and punished, citizens in Balochistan would not be facing genocide today.
The writer is Director Programmes Sungi Development Foundation.
Source: The Daily Times, Lahore