Jan 19, 2010

Balochistan: Justice Delayed, Justice Denied

Active ImageHuman Rights groups call for recovery of missing and unlawfully detained people.



Below is an article published by Dawn:

Even more political workers have been picked up in recent days, says VBMP chairman Nasrullah Baloch. And while the province’s home ministry has issued a list of 992 missing, several Baloch political and human rights groups have declared the list a “ploy to deceive the people.”

The confusion regarding the number of missing is surprising, given that there are a number of political and human rights groups involved in collecting information on the missing from different parts of the province. VBMP, for example, is also working with the Marri Ittehad, the Baloch Women Panel, and another group collecting details on missing Bugtis to prepare a collated list. “The joint list is going to have some 8,000 names on it, including 133 missing women as well,” says Baloch.

The government has assured of efforts to secure the missing persons’ release and has claimed progress in this regard. On December 9, Prime Minister Yousuf Raza Gilani told the parliament that out of the list of 992 missing, 262 Baloch have "already returned to their homes."

But activists contend that little has been done. Amina Janjua, chairperson Defence of Human Rights (DHR), another group advocating for the recovery of the missing, says “very few people have actually been released.” She contends that the 16 Bugti tribesmen who were released were later re-arrested. “And these 16 were not the ones in the agencies’ custody...they were released from Aali Bugti’s private prison in Sui,” she adds.

The difference between the government’s statements and the rights groups’ findings on the number of those missing and those released cannot be overlooked. Moreover, among the missing are many who have been in detention for months, in some cases years, without any cases lodged against them. For these people, the government’s announcement of a general amnesty is immaterial as their fundamental rights as citizens were trampled on to begin with. “Intelligence and security agencies appear to be operating outside the legal ambit,” says Habib Jalib Baloch, senior lawyer and Central Secretary General of the Balochistan National Party – Mengal (BNP-M).

Still, those detained without due legal process are entitled to claim damages. “The state is liable to compensate the victims and such precedents exist in the judgments of the Sindh High Court and the Lahore High Court,” explains constitutional expert I.A. Rehman. The Sindh High Court’s judgment in Mazharuddin vs. the state lays down the principle that any illegally detained individual is entitled to receive compensation from the state as well as from the individual officers responsible.

A similar precedent exists in the Lahore High Court. After the Mumbai attacks, Jamaatud Dawa chief Hafiz Mohammad Saeed was initially detained under the Maintenance of Public Order Ordinance that allows temporary detention (up to three months) of individuals “suspected to create disorder.” This detention cannot be extended unless a judicial review board, before the expiry of the three months period, has evaluated the relevant case and reported that there is, in its opinion, “sufficient cause for such detention”. In Saeed’s case, when the Lahore High Court’s constitutional review board extended his detention period to another 60 days, his family was entitled to receive Rs. 25,000 per month as compensation during that period of custody.

Therefore, those who have undergone extra-judicial detention can petition the courts for a writ of habeas corpus. For her part, DHR’s Janjua plans to take the victims of arbitrary detention to courts to claim damages once a considerable number of people have been released. However, she points out that the real challenge will be to provide evidence of detainment by the institutions in question, which is required to claim damages.

Another obstacle in claiming damages is that many detainees are reluctant to take on the government. “It will be difficult to convince the already frightened people to prosecute the authorities,” Janjua admits.

Her perception was confirmed by one of the recently released missing persons. “I don’t know if I should do anything. I am alive and back but I am very afraid,” says one Baloch activist requesting anonymity, who was detained in 2008 and released in November 2009.

Along with the missing persons’ issue, the government’s withdrawing of 89 cases against certain Baloch political leaders and activists is also being scrutinised. “The government is giving the impression that it has given a general amnesty, but the truth is that these 89 cases constitute only 25 per cent of the total number of politically motivated cases,” points out BNP-M’s Baloch.

Baloch adds that even these 89 cases have not been effectively withdrawn yet as the Balochistan High Court has yet to receive the chief minister’s notification to stop the proceedings since the provincial law ministry is still working on “legal formalities.” On the other hand, Home Secretary, Balochistan, Akbar Durrani says that the cases’ withdrawal is “almost final” and “only a few formalities are left.” According to him, the cases are being reviewed to determine which one can be withdrawn, and which need to be pursued. He elaborates that cases that do not involve crimes of a “dreadful” nature in which the state is the prosecutor are being withdrawn, while those involving heinous crimes will remain in the system. The process is expected to take up to three months.

Questions have also come up as to the legality of the cases’ withdrawal and whether the government has the authority to retract them. “The government has the legal authority to withdraw cases in which the prosecutor is the state. A somewhat similar amnesty was announced in Balochistan in 1977 by General Ziaul Haq. But the procedure of that amnesty was carried out through direct military involvement,” explains I.A. Rehman.

Well over a month after the package’s announcement, the province’s most sensitive issue of missing persons and the declaration of amnesty in politically motivated (largely treason) cases require proper, yet swift, handling. Many wonder whether the rule of law will eventually overcome the impression of, as Justice Raja Fayyaz put it, a “Gestapo-like reign of terror.”