EDITORIAL: Cloaked in a veil of impunity - Friday, November 26, 2010

Source : http://www.dailytimes.com.pk/default.asp?page=2010\11\26\story_26-11-2010_pg3_1

Pakistan’s intelligence agencies seem to think they are above the law. This could not have been more obvious in the case of the 11 missing prisoners who were allegedly picked up by our agencies from the Adiala Jail. On Wednesday, Attorney General (AG) Maulvi Anwarul Haq submitted a written reply to the Supreme Court (SC) on behalf of the Inter-Services Intelligence (ISI) and Military Intelligence (MI) that says: “It is stated stance of answering respondents that the alleged detained prisoners are not in their custody.” In a separate reply, the Intelligence Bureau (IB) has claimed the same. Now, when looked at from the turn of events, it is unlikely that these agencies are telling the truth. Clearly, the prison authorities did not set the prisoners free despite the orders of first the Anti-Terrorist Court and later the Lahore High Court (LHC). The prisoners could not have evaporated into thin air. There had to be some documentation of their ‘release’. Earlier this month, the SC rejected a report filed by the AG stating that the missing prisoners were not in the agencies’ custody because in an earlier hearing, the Special Branch’s report said otherwise and Punjab’s chief secretary also claimed that they had been abducted by the ‘angels’. The SC then ordered the ISI, MI and IB to submit a reply to these charges. Now the Punjab home secretary has confirmed to the SC that the prisoners were taken away by the ISI.

Despite the LHC’s acquittal, District Coordination Officer (DCO) Imdadullah Wassal and Punjab Home Secretary Shahid Khan prevented their release by issuing detention orders. The Rawalpindi bench of the LHC then directed the petitioners, who challenged these detention orders, to approach the SC’s judicial commission on missing persons. Instead of holding the DCO and Punjab Home Secretary in contempt for flouting the court’s orders, the Rawalpindi bench of the LHC let them off the hook and transferred the case to the SC. It is ironic that we have been celebrating the independence of the restored but the LHC could not do much when prisoners in judicial custody went missing. Chief Justice (CJ) Iftikhar Chaudhry, on the other hand, has taken a tough stance and took umbrage at the ISI and MI’s reply that “an office cannot be sued. The proper party is the Federation of Pakistan through the secretary of relevant ministries”. The CJ asked the AG under which law are these agencies functioning that they cannot be made party to a case.

Once again, our intelligence agencies have cleverly cloaked themselves in a veil of impunity. People have been abducted in broad daylight without let or hindrance all over the country, especially in Balochistan. Even the Senate Chairman took notice of the abductions, torture and murder of people in Balochistan. Chief Minister Balochistan Sardar Aslam Raisani admitted in a BBC interview that “some of the abductions and killings are definitely carried out by security agencies”. When extra-judicial killings are being carried out by these agencies, there is sufficient suspicion to believe that the Adiala Jail inmates are in their custody as well. It will be a real test for the judiciary to prove its mettle if it can take the security agencies to task. The last time the CJ threatened to bring the intelligence chiefs to court for questioning in the missing persons’ cases, he was removed unceremoniously by General (retd) Musharraf. But this should not deter CJ Chaudhry who is known for taking bold steps to establish the judiciary’s independence. It is time to put an end to this culture of impunity and the intelligence agencies made accountable for their alleged crimes against humanity. *

SECOND EDITORIAL: 175A starts functioning

After much hullabaloo and protracted court proceedings on the issue, it is encouraging to see that the judicial and parliamentary bodies for appointment of superior judges have started functioning according to the procedure laid down in the 18th Amendment under Article 175A. In its astute judgement on petitions both in favour of and against the amendment, the Supreme Court (SC) had directed parliament to remove anomalies in the amendment and also made some recommendations, which it considered essential for upholding the independence of the judiciary. Parliament, for its part, has agreed to incorporate the recommendations and correct lacunae in the procedure of appointments through another constitutional amendment. Hopefully, certain things that had been overlooked earlier will now be addressed by the Constitutional Reforms Committee in the 19th Amendment. In the first exercise of the new procedure, the parliamentary committee met and approved the name of Justice Ijaz Ahmad Chaudhry for the post of Chief Justice of the Lahore High Court (LHC) forwarded to it by the judicial commission. The appointment meets the principle of legitimate expectancy laid down in the Appointment of Judges Case 2002, as Justice Chaudhry is the senior most judge of LHC after the present Chief Justice Khwaja Mohammad Sharif who will retire on December 8 this year. The appointment of superior judges, which was earlier an exercise behind closed doors, has come into the public domain, in which public representative are mandated to participate and express their opinion by accepting or rejecting the nominees, functioning above party lines and under the strict guidelines of the constitution and the SC. The apex court has left room for further review of the procedure in its upcoming hearing of the case in January. Experience will inform what is the best way to make the new system function.

Contrary to perceptions of a confrontation between parliament and the judiciary created during the court hearings on the 18th Amendment, the new system has started off smoothly, with the unanimous election of Senator Syed Nayyar Hussain Bokhari as chairman of the parliamentary committee and establishment of its rules of business. One can be sanguine that the procedure of broader consultation and more transparent mode of appointment of judges can work with necessary improvements. *

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