January 01, 2012

ANALYSIS: Fundamental rights violations in Balochistan —Sheikh Asad Rahman

Monday, January 02, 2012


If the recommendations of the Hamoodur Rehman Commission had been
implemented and responsible military and civilian officials duly held
accountable, tried in courts and punished, citizens in Balochistan
would not be facing genocide today


Fundamental and human rights violations take place every day in
Balochistan. In the past year over 300 mutilated bullet-riddled bodies
of Baloch political leaders, workers, activists, students, teachers,
lower grade public servants, have been dumped at desolate places or
roadsides. Sectarian violence, especially targeting the Hazara Shia
community (hitherto unknown in Balochistan and only in the past three
years), and ethnic violence has seen an unprecedented rise. Most of
these bodies are of missing persons (Baloch sources claim over 1,300
missing) who had been abducted by the perpetrators years ago and some
recently. The families of the missing persons have been demonstrating,
rallying in front of the Press Clubs of Quetta and even Islamabad
trying to secure some information about their whereabouts but to no
avail. Hundreds of cases are pending in the Balochistan High Court but
no perpetrator has so far been identified leave alone docked.


In the past three years there have been credible fact-finding reports
by the Human Rights Commission of Pakistan (HRCP) and Asian Human
Rights Watch (AHRW) pointing to actions of the security agencies in
the perpetuation of this violence that can be termed crimes against
humanity and violation of constitutionally mandated fundamental
rights. There are eyewitnesses in most cases of abduction but they are
unwilling to expose themselves to a very real threat to their lives.
The police surgeon, Dr Baqir Shah, whose forensic examination pointed
to unwarranted shooting and killing of five unarmed foreigners by
Frontier Corps (FC) soldiers in the Kharotabad incident, was shot dead
the other day by unknown assailants. Since an impartial investigation
into his murder is unlikely as in so many other cases, this murder
will also remain unsolved like the hundreds others.

Balochistan's governor and chief minister have publicly declared that
the FC is running a parallel government not answerable to the civilian
government and answers only to GHQ. To clarify the status of the FC,
it is a paramilitary organisation, ostensibly reporting to the
provincial government where it is acting in aid of civil power but
practically being led by serving army officers who report directly to
GHQ, where the officers' loyalties lie. Considering the prime
minister's assertions on the floor of the National Assembly of a state
within a state, the provincial chief minister's and governor's
statements reinforce the prime minister's assertion. The question,
therefore, arises how is it possible for a security state to exist
within a constitutional and democratic state? For understanding this
we need to go to the root cause; the basic law of the land that
defines the people's fundamental rights and parameters of the
institutions.


Article 245: Functions of Armed Forces reads: "(1) The armed forces
shall, under the directions of the federal government, defend Pakistan
against external aggression or threat of war, and, subject to law, act
in aid of civil power when called upon to do so. (2) The validity of
any direction issued by the federal government under clause (1) shall
not be called in question in any court. (3) A high court shall not
exercise any jurisdiction under Article 199 in relation to any area in
which the armed forces of Pakistan are, for the time being, acting in
aid of civil power in pursuance of Article 245: Provided that this
clause shall not be deemed to affect the jurisdiction of the high
court in respect of any proceeding pending immediately before the day
on which the armed forces start acting in aid of civil power. (4) Any
proceeding in relation to an area referred to in clause (3) instituted
on or after the day the armed forces start acting in aid of civil
power and pending in any high court shall remain suspended for the
period during which the armed forces are so acting."


In simple parlance this means no action of the armed forces acting in
aid of civil power can be challenged in any high court while clause
(2) says clearly that no court, even the Supreme Court, can question
the federal government's calling the armed forces in aid of civil
power.


This unbridled and carte blanche authority without any checks,
balances or accountability leads to the violation of the following
fundamental rights. Article 9: Security of Person reads: "No person
shall be deprived of life or liberties save in accordance with law."
Article 10 reads: "Safeguards as to arrest and detention. (1) No
person who is arrested shall be detained in custody without being
informed, as soon as may be, of the grounds for such arrest, nor shall
he be denied the right to consult and be defended by a legal
practitioner of his choice. (2) Every person who is arrested and
detained in custody shall be produced before a magistrate within a
period of 24 hours of such arrest, excluding the time necessary for
the journey from the place of arrest to the court of the nearest
magistrate, and no such person shall be detained in custody beyond the
said period without the authority of a magistrate. (3) Nothing in
clauses (1) and (2) shall apply to any person who is arrested or
detained under any law providing for preventive detention. (4) No law
providing for preventive detention shall be made except to deal with
persons acting in a manner prejudicial to the integrity, security or
defence of Pakistan or any part thereof, or external affairs of
Pakistan, or public order, or the maintenance of supplies or services,
and no such law shall authorise the detention of a person for a period
exceeding three months unless the appropriate Review Board has, after
affording him an opportunity of being heard in person, reviewed his
case and reported, before the expiration of the said period, that
there is, in its opinion, sufficient cause for such detention, and, if
the detention is continued after the said period of three months,
unless the appropriate Review Board has reviewed his case and
reported, before the expiration of each period of three months, that
there is, in its opinion, sufficient cause for such detention. "


Article 10A: Right to fair trial reads: "For the determination of his
civil rights and obligations or in any criminal charge against him a
person shall be entitled to a fair trial and due process." Article 14:
Inviolability of dignity of man, etc, reads: "(1) The dignity of man
and, subject to law, the privacy of home, shall be inviolable; (2) No
person shall be subjected to torture for the purpose of extracting
evidence."


It is, therefore, imperative for parliament to review articles and
clauses that allow the violation of fundamental rights in peace time
leave alone in an emergency. Parliament must have oversight over the
actions of the armed forces and the superior judiciary, the Supreme
Court and the high courts, need to be empowered to hold to account
gross fundamental and human rights violations allegedly committed by
the armed forces. If the recommendations of the Hamoodur Rehman
Commission had been implemented and responsible military and civilian
officials duly held accountable, tried in courts and punished,
citizens in Balochistan would not be facing genocide today.


The writer is Director Programmes Sungi Development Foundation. He can
be reached at asad.rahman@sungi.org


http://www.dailytimes.com.pk/default.asp?page=2012\01\02\story_2-1-2012_pg3_2

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