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Asian Federation Federation Against Involuntary Disappearances

Asian Federation Federation Against Involuntary Disappearances

Asian Federation Against Involuntary Disappearances

Asian Federation Federation Against Involuntary Disappearances

Asian Federation Against Involuntary Disappearances

COUNTRY SITUATION
Pakistan

Social Structure and Law Against Disappearance
(Pakistani Perspective)

by Atty. Farooq Niazi¹

Legal rules vary among societies. There are conditions under which members of a society comply with legal norms and legal norms also evolve from the interaction of members of civil society with one another. The nature of law can be explained in terms of empirical conditions, within which legal doctrine and institutions exist. The general development of law may be viewed as passing through the following stages:

Charismatic legal revelations through law prophets;

Empirical creation and finding of law;

Imposition of law;

Systematic elaboration of law and professionalized administration of justice through law by formally trained persons.

Justice is the heart of a legal system and the desired end of a political process. A legal system, capable of providing justice to all, could become an anti-people device in the hands of ruling classes.

In western democratic society, some of the primary values on which the legal edifice or structure is based are free enterprise, individualism, political pluralism, civil liberties and separation of church and state. On the bases of these values, legislation is carried by elected members and these values are reflected in ratio decidendi and obiter-dicta of judicial decisions as well as in statutes.

In theocratic authoritarian states, laws of state are laws of God and the ruler is the appointee of God.

In a normal rational society, it is necessary to inform people about the law. Socialization of law is very important. Societies differ substantially in the dissemination of information about legal norms. Totalitarian societies disseminate information to people that pertain to duties, whereas democratic societies transmit information about rights as well as duties.

The center of gravity of legal development from time immemorial has not depended on the activity of state but in the society itself. Law always follows social change. It has never been a harbinger of social revolution. A vibrant civil society develops a value system which is further expanded to provide a protective network to individuals. This network, existing in the form of norms with institutionalized methods of enforcement and dispensation of justice, protects individuals and maintains equilibrium between the state and civil society, and the individual. When this equilibrium is disturbed by internal pressure or by external aggression, civil society institutions collapse and the state becomes a rogue state, with a brute force at its disposal to bulldoze civil society institutions which act as the custodians of civil liberties and human rights.

Pakistan was created in 1947 due to the collapse of civil society institution in British India. The internal harmony of the civil society was disturbed by colonial exigencies. The destructive weapon used for the demolition of civil society institution was the division of civil society on the basis of religion. Theocratic missiles inverted by international power brokers for maintaining their hegemony on the resources of the world, were mercilessly used for the destruction of the pyramid of unity in diversity. The result was the killing of more than two million people, migration of more than ten million people and the disappearance of more than one and a half million people. Majority of the disappeared persons were women.

The division of British India, resulting in the creation of two independent sovereign countries caused the first large scale disappearances of such huge magnitude in human history. No data collection process for ascertaining the actual number of disappeared persons was conducted. It was the first large scale disappearance caused by non-state Bandits, since a state structure was non-existent at that time.

The hang over of the past still over-shadows the civil society activities in Pakistan. Civil Society is still in a state of hibernation. Feudal lords dominate the state structure and they have become power brokers. All the state institutions are subservient to the interests of feudal lords. The army, civil and judicial bureaucracy have metamorphosed into feudal lords and these new feudal lords are more ruthless, brutal and flawless in engineering the new social order.

Since its creation in 1947, Pakistan has been beset with chronic problems of political instability. Time and again, its constitutional structure has been unlawfully shattered, altered or abrogated to meet the requirements of the new incumbent of the Chief Executive Office. All unconstitutional transformation of power legalized by the judicial branch of the state. Judiciary in Pakistan has always legalized coup d'etat and helped usurpers to legitimize their position.

Constitution is not the requirement of the state but of civil society. The civil society of Pakistan and the state of Pakistan are two divergent entities. The state is in command of all resources including fountain heads of power while civil society is in an unpleasant slumber.

This situation is very painful and has resulted in political suffocation. The 1973 constitution of Pakistan has guaranteed fundamental rights. There is a procedure for the enforcement of these fundamental rights through courts. But the constitution and state institutions including the judiciary, have become Teddy bears. The Following is a citation of two cases for further elaboration.

Ehasan Aziz: He was abducted from his house at midnight of 19-30 May 2003. There was a knock on the door. Ehasan came out to meet the knocker and disappeared. A writ petition was filed in the court (this is a constitutional right). The court summoned the state agencies. All agencies denied in writing about the arrest of Ehasan. Loud protests were registered by civil society actors, but of no use. He was released after 8 months. The anatomy of the case reveals the dichotomy of the legal set up existing in Pakistan. According to the law of the land, the liberty of a person is guaranteed and no one can be deprived of liberty except by a procedure laid by law. The procedure is that the police or any other state agency is authorized to arrest a person only if there is a criminal case against him. At the time of arrest, a person is to be informed about the charge and is to be presented before a magistrate within 24 hours and the magistrate is informed about the charges against him. An arrested person has the legal right to consult his lawyer and family members. The court has to act as the custodian of his liberty. But in Ehasan's case, he was neither informed of the charges against him nor was he presented before a magistrate. All state agencies denied his arrest. A question arises as to where he vanished? Why did the court fail to protect Ehasan against state onslaught? Where lies the remedy? These are pertinent questions to be addressed.

The second case is of Muhammad Ajaz Khan. He was abducted on 6-7 October 2002 from a tea stall and was taken to Cuba. His family members registered a First Information Report (FIR) to the police stations. All state agencies denied his arrest. Again, law and legal procedures failed to protect the liberties of an individual. Nothing has been proven against Ajaz, but he is still in detention . All state agencies consistently deny the abduction of Ajaz. The questions which need answers are:

Who abducted Ajaz?

What are the charges against him?

Why have state agencies denied their involvement in his abduction?

Who has taken him to Cuba?

Who controls and manages the Cuba cage cell?

What remedies are available to a person who has vanished from a tea stall?

The unholy alliance between the CBI and Pakistan intelligence have caused more than 500 disappearances in Pakistan. Where does remedy lie?

These abductions are carried without following the legal procedures of Pakistan or the USA. Pakistan's political and legal stage is a theater of absurdity. Freebooters are its front line actors. The coercive power of the state exercised with ruthless brutality by rulers has damaged all the institutions of the state. Civil society has failed to protect the liberties of the people and it has created an alarming situation. A strong people's movement for democracy, rule of law, supremacy of parliament and independent judicial institution can only protect liberties of the people leading to the end of disappearances.

In the wild, there is no justice
Nor is there punishment.
Like snow, our human justice
Melts from shame in warm sun light. . .

go back to April 2004 issue

¹Farooq Niazi is a founding member of the Human Rights Movement in Pakistan. He is also a founding member of Civil Liberties Council and has remained its president for 8 years. Atty. Niazi is currently the Coordinator of Truth and Justice Commission in Muzaffarabad, Pakistan