The case of eleven missing persons, of whom four are already dead, currently being heard by a three-judge bench of the Supreme Court, has put the spotlight on an issue that has been hanging fire for over a decade now.
Hearing the case, which has been taken up on the basis of a petition filed by the mother of three missing persons, the apex court last Friday directed the chiefs of ISI and the MI and the chief secretary of Khyber Pakhtunkhwa to ensure the production of the remaining seven persons at the next hearing. The court expressed its annoyance over the filibustering and dilly-dallying tactics employed by the defence lawyer for the intelligence agencies and said that at the next hearing the missing persons should be presented before the court to uphold the principles of human rights and civil liberties.
The Supreme Court is seized with the missing person's case since December, 2009. On January 7, 2010, a three-member bench of the Supreme Court, headed by Justice Javed Iqbal, resumed hearing of petitions in the case of missing persons filed by the Human Rights Commission of Pakistan (HRCP) and other parties. This case, concerning people who had been picked up from their homes and whisked away to foreign shores, had been pending in the courts since 2005. The Chief Justice, Iftikhar Muhammad Chaudhry, had been hearing the case when he was removed from his office by General Musharraf. Like the rest of the judicial machinery, this case was also put in limbo.
The story of missing persons began in 2001, when Pakistan under General Musharraf joined the war on terror. Hundreds of Pakistanis were abducted and detained by the security agencies on suspicion of having links with terrorist networks and held incommunicado and without going through due process of law. Many of them were handed over to the US. Musharraf in his book In the Line of Fire wrote that about 700 terrorist suspects were captured and 369 were handed over to the US in return for millions of dollars in bounty. The exact figure of Pakistanis held by the security agencies is not known as the entire operation is hidden behind a thick curtain of secrecy. But according to the Defence of Human Rights of Pakistan, the estimated number of missing persons is in the range of 8,000 - 10,000. As for the federal government, the figure given to the Supreme Court is around 1,600. The Balochistan government speaks of some 1,000 Baloch people missing.
The HRCP originally filed a petition on behalf of the families of missing persons in 2005. Subsequently, Chief Justice Iftikhar Muhammad Chaudhry constituted a bench to hear the petition. Notices were sent to the Attorney General and the Interior Ministry to give an account of the missing persons. But these notices were not taken seriously and the Attorney General and the Interior Ministry did not file a reply as directed by the court.
As the Musharraf government had adopted a policy of deliberate stone-walling, the case could not make any progress. Five hearings took place since December 2006, but the deputy attorney general could not elicit any response from the concerned government agencies. When the apex court resumed hearing in April 10, 2007, the deputy attorney general expressed his utter helplessness in assisting the court because, as he said, there was total lack of cooperation from the Interior Ministry. He submitted before the court: "The crisis in the country is due to the non-enforcement of the Constitution… I have sentiments, too, being a father, a brother and a husband and feel the difficulties of the families of the missing persons. Therefore, I cannot face them."
Without doubt, the missing persons' case was a crucial factor in Musharraf's sacking of Chief Justice, Iftikhar Muhammad Chaudhry. Musharraf was a dictator and carried on his one-man rule in utter violation of the law and the constitution. He could not tolerate the judiciary playing its due role in national affairs and dispensing justice on merit. But his comeuppance was soon to come and it was triggered, ironically, by his attack on the judiciary.
The missing person's case was revived only after Musharraf had departed from the scene. It is important to remember that the restoration of Chief Justice Iftikhar Chaudhry to his judicial pedestal not only signalled the triumph of democracy over dictatorship but it also ushered in a new era of the rule of law and constitutional democracy. Since its restoration, the Supreme Court has handed down a number of landmark rulings and judgments which have helped to consolidate the rule of law in the country and protect the public interest. The apex court has come down hard on the corrupt government leaders to prevent national wealth from being squandered. Initiating suo moto action, the court has exposed and punished the corrupt in numerous cases, including the Karachi Steel Mills, the NICL and the Haj ministry scandals. The striking down of the infamous National Reconciliation Ordinance (NRO), which provided blanket amnesty in criminal and corruption cases in blatant violation of the constitutional principle of equality before the law, is another major example of the judiciary's tireless endeavours to uphold the rule of law in the country.
The missing persons’ case is directly related to the constitutional provisions which guarantee that the state is a protector of the life and liberty of the citizen and that an individual cannot be detained or punished without due process of law. No doubt, in taking up this case the judiciary is up against the powerful intelligence agencies, and many in the media and civil society have expressed doubt whether the apex court will be able to call representatives of the military establishment to account as it has done in the case of the civilian government.
But in saying this, these Doubting Thomases forget that Chief Justice Iftikhar Muhammad Chaudhry did not falter even in the darkest days of dictatorship and boldly stood up to a ruthless dictator who in his day was the monarch of all he surveyed. If he did not falter then, why should he waver now when a democratic dispensation is in place and the country is being ruled as per constitutional law?
It should not be forgotten that the Chief Justice himself is heading the bench which is hearing the missing persons’ case. Significantly, it is for the first time that under the apex court's prodding the spy agencies have confessed to holding the missing persons named in the case. During last week's proceedings, the CJ did not mince words while upbraiding the defence lawyer for his failure to produce the missing persons as ordered by the court. It should be hoped that following up, the apex court will take up the case of all missing persons and, through the accountability process set in motion, will ensure that no citizen's liberty is forfeited without due process of law.