This week, Bench No. 1 of the honorable Supreme Court, a day before the retirement of Iftikhar Muhammad Chaudhry as Chief Justice, announced its much awaited verdict in the missing persons case. In a dispute that had become perhaps the most ferocious contesting ground between the military/intelligentsia establishment, and an ‘independent’ Court, the honorable Court rendered a judgment which is a victory in law, but defeat in fact.

It is a victory in law, because the Court has declared that illegal confinement of the missing persons, without recourse to the due process of law, is a violation of the fundamental rights of such individuals. Even military/intelligence operations, under the banner of ‘War on Terror’, do not have the constitutional mandate to deny such individuals their rightful recourse to provisions of the law and fair trial procedures.

However, the verdict, despite such declaration, has been unable to recover the ‘missing persons’ from the iron clench of our security establishment (who was able to successfully run out the clock on a retiring Chief Justice), and thus, in reality, remains a defeat for the Courts and the law.

While the instant matter relates to the disappearance of 35 persons from a jail in Malakand, along with their subsequent detention at unidentified locations, the overall issue of ‘missing persons’ in Pakistan entails a total of 721 cases, pending in different courts of the country. As observed by the Court, while it has become virtually impossible to determine who exactly has ‘picked-up’ these individuals, where they have been kept, and what exactly is the charge against them, there is little doubt (based on statement by the relatives of the missing persons, and the jail superintendent of Malakand) that “Army Authorities” were involved in these illegal disappearance.

Prima facie, it cannot be denied that the disappearance and illegal confinement of these individuals (regardless of which agency or uniformed outfit is involved in the operations) is patently illegal, as per the provisions of the Constitution. Specifically, Article 4 of the Constitution provides that “to be treated in accordance with the law” is an “inalienable right” over every individual (event terrorist suspects), and Article 5 provides that “obedience to the Constitution and law” is an “inviolable obligation” of every citizen (including members of the Armed Forces). Furthermore, in terms of fundamental rights, Article 9 of the Constitution provides that “no person shall be deprived of life and liberty save in accordance with law”; Article 10 protects all “person[s]” against detention without being afforded a due process of law; Article 10A entitled all persons to “a fair trial”; Article 14 protects the inviolable “dignity” of all individuals (specifically against “torture for the purpose of extracting evidence”); Article 15 gives every citizen the freedom of movement; and Article 25 guards against “discrimination” and ensures that all citizens “are entitled to equal protection of law”.

And it is within these strict contours of the Constitution that our security agencies must operate. On the civilian side, all the laws made for countering violence and terrorism in Pakistan – including the Pakistan Penal Code (1860), the Anti-Terrorism Act (1997), and the Protection of Pakistan Ordinance (2013) – all must work within this framework of the Constitution. And even on the Military side, the Army Act (1952), and all other legal instruments and executive orders that govern the functioning and powers of our military and intelligence apparatus, must abide by the overarching Constitutional commands. To the extent that any provision or power of these legislative instruments steps beyond the contours of the Constitution, the same is untenable in law and therefore should be unenforceable in fact.

As such, viewed through the Constitutional prism, the missing persons – regardless of the allegations against them – cannot be deprived of their Constitutional protection. Even the stretched argument of the Army Authorities, claiming that since this is a ‘war’ situation (War on Terror), the Constitutional protections cannot be afforded to such militants, is hopelessly flawed. Fact of the matter is that Army operations in War of Terror, conducted within the territorial bounds of Pakistan (against a faceless enemy that is frequently Pakistani citizen) is at most protected under Article 245(1) of the Constitution (Army action in aid of civil power), which is “subject to law”. As such, even during such operations, the Fundamental Rights of the citizens are not suspended, and thus the same cannot be violated.

In the same breath, however, it is important to view the (unofficial) narrative of the security forces, and understand their rationale behind illegally detaining the missing persons. The argument of the security establishment (police/army/intelligence) is not without merits. They claim that, over the past some years, anytime that the security agencies have presented a terrorist suspect before the courts of law, the prosecution and courts of Pakistan have – without fail – been unable to convict the suspected terrorist, and frequently allow bail to (dangerous) individuals at preliminary stages of the trial. The freed suspects, now under the protection of a bail or acquittal order, become emboldened to conduct further terrorist activities and violence across Pakistan, the brunt of which is either faced by, or blamed on, the law enforcement agencies. As a result (they claim), it is in the interest of Pakistan and her people, that the terrorist suspect be apprehended, detained and investigated, without being brought before courts of justice and a porous prosecutorial regime.

Hard as it might be for the legal community to accept, this narrative of the security agencies has merit in its claim. Over the past some years, there has been no major conviction of terrorist suspects. According to the ongoing research of Islamabad-based Public Policy Review Center (PPRC), of the 17 recent “high profile” terrorist acts in Pakistan (e.g. the Marriot Bombing), all suspects – without exception – have either been acquitted or released on bail. Reason? Insufficient incriminating evidence, as per the principles established by superior Courts.

Combining the two narratives, while there can be no cavil with the honorable Supreme Court’s judgment in the missing persons case, and the Constitutional violations pointed-out therein, the Court (and the legal community) also needs to reassess its own standards and approach to the prosecution and conviction of terrorist suspects. It is a travesty to demand that all suspects be produced before Courts of law, while ensuring (though past conduct) that all of them will eventually be released (scot-free) through the loose grip of law.

Our counter-terrorism law, strategy, and approach, is broken. And only a part of it can be blamed on our security agencies. Considerable fraction of the problem rests with the way our law, and its application, treats terrorist suspects. The missing persons must be produced before Courts of law. Because the idealistic promise of our Constitution, and the moral fabric, our nation must extend the protection of law to even the most vile of our citizens in the midst of an unholy conflict. But this promise can only be justified and enforced if the Courts of law, in cognizance of the plague of terrorism that is rotting our national fabric, demonstrate some willingness to review the evidence standards applicable for the conviction of these barbaric individuals.

 The writer is a lawyer based in Lahore. He has a Masters in Constitutional Law from Harvard Law School.

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