PAKISTAN: The Supreme Court must clarify the comments of the Chief Justice on the possible imposition of a State of Emergency
In a surprising move the Chief Justice of Pakistan, Iftikhar Chaudhry has shown his inclination towards the imposition of Emergency Regulations in the province of Balochistan.
In the cases of disappearances that have actually been brought before the courts the military has shown complete arrogance towards the higher judiciary. They have blatantly refused to disclose their records on persons who have been arrested or abducted even when family members have testified in open court that they witnessed their relatives being taken by the military. This has been borne out by recent videos revealed by the police that the personnel from the Frontier Corp have abducted people in their official vehicles. The police also testified that persons have been taken from their custody by the military without any official orders or legal documents thereby leaving no record of them having been arrested by the military. Therefore, quite apart from the testimony of family members there can be no doubt of the military involvement.
This is sending a clear message to the courts that they should not attempt to impose their authority over the army and intelligence agencies who believe that they are, in fact, a law unto themselves. The message is crystal clear: do not interfere in cases in which the military is involved.
This blatant arrogance on the part of the military is obviously the source of the CJ's impatience and frustration. It may be argued that his anger is fully justified in that the provincial government has turned a blind eye to the almost daily forced disappearances and extrajudicial killings. This 'insurgency-plaqued' province is now the scene of murders and abductions committed by the military with the tacit approval and cooperation of the police and local government. There is no due process and therefore no protection what-so-ever for the victims and their families.
However, in his eagerness to fix this problem the CJ is taking the wrong path. The imposition of emergency regulations will simply give the military and the intelligence agencies responsible for these crimes even more impunity than they already enjoy. In this, the CJ's actions are misguided.
He should instead be looking at strengthening the power of the courts and overhauling the policing system. He should be looking at dissolving the impunity currently enjoyed by the military and holding them accountable for the thousands of deaths that have been reported during the last decade. It is good that he is finally prepared to do something to halt the disappearances but the solution lies in reining in the military who consider themselves to be judge, jury and executioner.
It is interesting to note that many hours after the CJ made these comments there has been no explanation or clarification from the Supreme Court about his remarks for considering the imposition of a State of Emergency in the province. This raises the very important question as to where the authority of the court comes from. Can the Supreme Court make and impose decisions that are clearly unconstitutional?
The people of Pakistan struggled for three years to reinstate the CJ and ensure the rule of law in the country. However, where is that rule of law now when the military can abduct and murder citizens with impunity on the mere suspicion of insurgency? The forced disappearances were in their highest during the State of Emergency that existed before the restoration of the judiciary. How then can the CJ expect that the problem will be solved by the imposition of the same State of Emergency that will simply give the military more impunity that they currently enjoy? If such words are used by the highest judicial officer of the country this will provide the military the very opportunity they have been waiting for; to take over the government, re-impose martial law and usurp all power and fundamental rights of the people.
The Asian Human Rights Commission strongly recommends that the judiciary refrain from using such wording which only hampers the fundamental rights of the people and provides a conducive environment for the supra-constitutional forces. It is not the job of the judiciary to look for solutions that involve militaristic or unconstitutional methods. The foremost duty of the judiciary is to implement the rule of law in the country and they can only do this by reining in the military and holding them accountable for the thousands of deaths they have caused. The protection of the civil and fundamental rights of the citizens should be their one and only priority. The judiciary must not have any political agenda and adopt a militaristic mindset when considering the basic rights of the people and the rule of law.
We therefore appeal to the civil society at large to resist any attempts to reintroduce a State of Emergency by any institution or state agency. We urge the Supreme Court to make a statement clarifying the comments of the CJ as to what was really on his mind when he mentioned the re-imposition of the State of Emergency. If this clarification is not forthcoming it is feared that it will be a clear indication that the nexus between the military and the judiciary that has been evident throughout the 64 year old history of the country is reemerging. Civil society must remain alert for any such attempts.