Once again, on Monday, the government failed to produce before the Supreme Court the list of missing persons, earning the court's stiff rebuke. The three-member bench of the apex court, headed by Justice Javed Iqbal, was hearing 11 identical petitions filed by the relatives of missing persons as well as the one filed by the Human Rights Commission of Pakistan.
While the Commission's petition deals with 141 persons who disappeared mainly from Balochistan, other petitioners include Ms Amina Masood Janjua whose husband remains untraceable for over two years along with many others. At the last hearing, on March 8, the bench then headed by non-functional Chief Justice Iftikhar Muhammad Chaudhry, had directed that the representatives of intelligence agencies, who are blamed for the disappearances, be present at the next hearing.
But now the government lawyer, Deputy Attorney General Raja Irshad requested the court that since the Military Intelligence (MI) and Inter-Services Intelligence (ISI) were not answerable to any one except the President and the Prime Minister, he be given more time. He also asked the relatives of the missing persons to help him with clues about their whereabouts, if they have any.
Justice Javed Iqbal was not prepared to take this, observing that even if these agencies are not answerable to any ministry they are answerable to the superior judiciary. Fixing the next hearing for April 10, he directed the government attorney to make sure that at the next hearing a concise statement of all missing persons is presented, a copy of which should be made available to the petitioners two days in advance.
He said the court wants answers to four questions: 1) by whom these people were detained; 2) under which law the action was taken; 3) intelligence agencies were answerable to whom; and 4) whether they were answerable to the court. "Responsibility will be fixed and every responsible person will be called in the court to honour all constitutional rights guaranteed to citizens", observed Justice Javed Iqbal. He rejected the official attorney's plea to the petitioners for the clues, saying it was for the government to find the clues.
Disappearance of political opponents is a well known hallmark of a police state. While a number of countries in the Third World and erstwhile Communist Bloc had earned this ignominy, Pakistan had escaped the stigma, despite a few cases, till Nine-Eleven. As soon as the US-led war against terror was joined by Pakistan, disappearances became common.
People were being picked up with disturbing regularity. Some were let off while others landed in foreign prisons. But quite a substantial number disappeared without trace. Late last year when the relatives of these unfortunate persons banded together and started demonstrating before the parliament building and press clubs, some movement took place.
The then Chief Justice of Pakistan, Justice Iftikhar Muhammad Chaudhry, taking suo moto notice, asked the government if it knew where these missing persons were. After initial hesitation the government responded and even let off some but a number of them are still unaccounted for.
Maybe, some have gone missing on their own, to join some Jihadi outfit or are held incommunicado in a neighbouring state. But it is the constitutional obligation of a government to keep track of its citizens and exercise strict oversight on all operations leading to detention of people by a law-enforcement agency or a secret outfit.
So if a court intervenes to find out the whereabouts of a detainee the constitution brooks no excuse on the part of the executive to hide the facts, much less not to respond at all. Of course, there can be the reason of state security not to make the affair public but in-camera the fact of detention must be revealed. Pakistan's image has already been sullied by these incidents of disappearances. It would be both in the national interest and discharge of a constitutional obligation that the government should come clean on it, by making the intelligence agencies answerable to courts if and when required.
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