Pakistan's judges and military clash over rule of law

Mohabat Shah has stood silently before the bench at Pakistan's Supreme Court nearly every day last week. Shah's four-year search for his son, Yasin, has come down to a handful of court hearings that are testing the power of Pakistan's civilian government over its military.

The outcome of the legal tussles could have far-reaching effects for Pakistani communities that feel they have been victimized by the military. Their grievances have been cited among the factors motivating anti-government militants in restive provinces like Balochistan.

Yasin Shah was taken from his home by security forces in 2009, in Ghala, near Pakistan's turbulent Swat Valley, now in the northwestern province of Khyber Pakhtunkhwa (KP). At the time, the military was carrying out an offensive against the Pakistani Taliban. Rights groups say up to 4,000 people like Yasin Shah went missing from the region, presumably detained by the military as part of its counter-insurgency operations.

"Ninety-nine percent of these men were picked up from their homes," said Khanzada Khan, a lawyer who is handling missing-persons cases, including Yasin Shah's. "If they [security forces] can't get hold of a militant, they pick up their brother, father, son, even women, to put pressure on them."

Pakistan's military denies committing abuses in Swat.

Above the law?

Khan filed a petition in the Peshawar High Court on behalf of Yasin in 2009, but no headway was made in the case until last November, when Yasin's name showed up in a list of men who had been handed over to the army. The superintendent of an internment centre in the city of Lakki Marwat told the court he had given the army custody of 66 men - including Yasin Shah - in September 2011. Two months later, only 31 men were returned and subsequently released.

The Supreme Court took up the case of the remaining 35 last month. Despite threatening to hold Pakistan's prime minister and the chief of army staff responsible for the disappearances, the court has made little progress, and some worry the cases will be forgotten after the retirement of Chief Justice Muhammad Iftikhar Chaudhry, scheduled for 12 December.

Chaudhry was removed from office in 2007 by the country's military dictator General Pervez Musharraf after he pushed for the recovery of hundreds of missing persons presumably in military custody.

Musharraf's crackdown on the judiciary sparked massive street protests that led to his resignation in 2008, and the first free elections in nearly a decade. In 2009, Chaudhry was reinstated as chief justice with broad grassroots support from Pakistanis.

While Chaudhry has since taken up scores of cases dealing with corruption in the government - even removing a sitting prime minister in the process - he has been unable to compel the military to produce thousands of Pakistanis it picked up in operations against the Taliban in the northwest, or Baluchi militants in the province of Balochistan.

In the case of the 35 men taken from Lakki Marwat, the court has summoned Defence Minister Khawaja Asif on an almost daily basis for the last week. Technically, the military should fall under Asif's authority. A packed courtroom has watched as the defence minister has offered one excuse after another, failing to produce the men before the court or even disclose their identities. "Stop handing us lollipops and telling us you will come back tomorrow," Chaudhry told Asif during a hearing on 3 December.

Less than half of the 35 men have been tracked down as a result of the proceedings. The government says two died of "natural causes," nine left the country, three moved to the tribal region of Waziristan, and two were being held in civilian internment centres.

The rest, the court was told, were not in military custody. On 7 December, the government produced seven additional men in a closed-door meeting, saying the men's lives would be in danger if their identities were publicly known.

The court has asked the government for evidence of its claims about the missing men, and has hinted it could order murder proceedings for any that died in custody.

Court observers say if Chaudhry is not able to resolve the missing-persons cases, it would mean the military - which has orchestrated four coups in Pakistan since it gained independence in 1947 - is still above the law.

"It seems the courts are being misguided," said Hamid Mir, a senior Pakistani journalist that has been following the missing-persons cases. "Clearly the government is facing problems in establishing its writ."

Many missing

The 35 men from Lakki Marwat represent a fraction of the thousands missing across Pakistan.

"Fine, keep someone for one month, two months to investigate, but not for years" With more than 50,000 people killed by militants since 2007, rights groups say Pakistan's civilian leadership has given a free hand to the army to counter groups like the Taliban. Now, it is finding it difficult to wrestle back control of its counter-terrorism operations.

In 2011, Parliament passed the Actions (in Aid of Civil Power) Regulation, granting the military broad powers to detain anyone suspected of being involved in militant activity. "Instead of a proper systematic setup, the law gives sweeping power to the military to do whatever it likes," said Mustafa Qadri, a researcher for Amnesty International in Pakistan.

Pakistan's civilian institutions have had a hard time investigating and prosecuting terrorism suspects on their own. The police lack training and resources to process forensic evidence or protect witnesses in even the most serious crimes. Between 2005 and 2011, only 18 percent of cases registered in the country's special anti-terrorism courts resulted in a conviction.

When civilian courts let suspects go due to a lack of evidence, the military sometimes takes over. In 2010, a court in Lahore acquitted 11 men who had been charged with attacking military installations. Intelligence personnel showed up at the prison in Adiala where the men were being held and whisked them away to detention centres in Pakistan's tribal areas.

Four detainees died in military custody, and the Supreme Court was able to force the appearance of the remaining seven before the court last February, only to have them again taken away by intelligence officials.

"Fine, keep someone for one month, two months to investigate, but not for years," said Shamrez Raza, whose brother Jamshed was picked up by intelligence agents in 2011 after a Bahawalpur court acquitted him of terrorist activity. "If he is a criminal, if he has done something wrong, he must be brought to trial."

In 2010, the government set up the Commission of Inquiry on Enforced Disappearances to track and resolve missing-persons cases. It was an attempt to "deliberately move cases out of the limelight, out of the Supreme Court," said Amina Janjua, a missing persons' advocate whose husband, Masood Janjua, was picked up by intelligence officials in 2005. "No one owned the problem or took it seriously," she said.

The commission is composed of a single retired judge and handles thousands of cases a year.

"We wasted two years with the commission," said Ziaullah, whose younger brother Fasiullah was picked up by a pair of plainclothes intelligence agents in June 2007. The brothers had brought their ailing mother to Islamabad for medical treatment in the midst of a military operation against Islamists holed up in the Red Mosque.

"Fasiullah left to arrange transportation for us, but never came back," Ziaullah said. Ziaullah was finally able to meet his brother this autumn, after getting a written order from the chief justice.

The country's judiciary has become essentially the only venue for lodging complaints against the military, but it has had little success in asserting its jurisdiction.

Based on information from a detainee who was kept with her husband, Janjua has been able to name six military officers responsible for her husband's disappearance, but none have appeared before civilian authorities.

Protests

Last week the court took the unprecedented step of holding a senior military official in contempt. Major General Ejaz Shahid, the head of the paramilitary Frontier Corps, failed to appear before the court despite four separate summonses as part of an inquiry into extrajudicial detentions and killings in Balochistan, where federal troops have been battling a separatist insurgency for decades.

The provincial government says 592 mutilated bodies - mostly belonging to Balochi political workers - have turned up since 2010. While there are officially only 132 cases of missing persons in the province, Balochi activists have put the number in the thousands.

After several hearings inquiring about the abuses, last year Chaudhry's court concluded the Frontier Corps was largely to blame. The contempt charge against Shahid is the only major action to come from the court.

"The court can only give orders," said Khan, the lawyer. "It does not have batons or guns to force anyone to do anything."

On 6 December, Janjua and hundreds of others with missing relatives held a sit-in before the Parliament House in Islamabad. It is déjà vu for Janjua, who staged a similar sit-in in 2007. Back then, Musharraf ordered police to disperse the crowd, helping spark street protests that led to his resignation.

"No one forgets their husbands. No mother forgets their son - whether they are from KP, or Balochistan, or anywhere in Pakistan," said Janjua.

"If this court cannot help us, there is no one else in this country who can help us."