Replying on Wednesday to the Supreme Court notices issued to the heads of the three spy agencies - ISI, MI and IB - regarding the whereabouts of 11 persons who disappeared from the Adiala jail, Attorney General Anwarul Haq said that the legal petitions filed by the heirs of the prisoners or other missing persons are not maintainable.
According to him, the agencies denied that those missing persons were in their custody, and also maintained they could not be made respondents in constitutional petitions as the party in such matters was always the federation represented by the secretary of the ministry concerned. The concerned secretary had earlier claimed he had no knowledge about the prisoners. These men, it may be recalled, were acquitted by an anti-terrorism court last April in four different cases of rocket fire on the Kamra Pakistan Aeronautical Complex, an assassination attempt against former President Pervez Musharraf, a suicide attack on a bus carrying an intelligence agency personnel, and a suicide strike on the GHQ.
Despite the acquittal the Punjab Home Department had kept them under detention. But the Lahore High Court intervened, setting aside their detention orders and directing immediate release. That is when they disappeared, and the LHC took a serious notice of the incident ordering criminal proceedings against the jail superintendent and deputy superintendent.
The case has brought the question centre stage whether the intelligence agencies are above the law. The AG's reply implied they are. In fact he made the shocking statement that there were no rules or laws applicable to these agencies. The CJ was not pleased when the proceeding resumed on Thursday. The court observed that the AG was claiming immunity by saying that notices could not be issued to the agencies, whereby the notices were issued under Article 185(3) of the Constitution, and its supplementary law of Supreme Court Rules, 1980. Notably, Article 185 deals with protection of fundamental rights, and in the event of any infringement allows citizens to file writs, including habeas corpus writ, in the apex court, against illegal detention. The court deserves all praise for remaining firm in protecting the people's constitutional rights in the face of determined resistance by the intelligence agencies.
The missing persons' issue is a serious breach of fundamental rights. It is a source of much anger and dismay across Balochistan, where hundreds of dissidents have disappeared. Justice demands that their families be informed of their whereabouts, and the suspects themselves duly charged and presented before courts. Those who went missing in the present case, though, belong to a different category. They were accused of grave crimes and tried in anti-terrorism courts. Evidence in such cases is often insufficient. Witnesses are too scared to come forward to testify. And hence the accused usually manage to go free, which understandably, is frustrating for the investigators. But then it is not uncommon either for our investigating agencies to knowingly arrest wrong people to prove efficiency. That underscores the importance of due process of justice. The courts, of course, cannot hand out punishment on suspicion alone; they need to establish guilt beyond reasonable doubt. The intelligence agencies need to work harder to prove culpability of suspects than simply to make them disappear. Like everyone else, they must respect the fundamental rights of the people as guaranteed by the Constitution. The rule of law must prevail.