LAST month, the seven surviving Adiyala prisoners were finally brought before the Supreme Court after over a year in secret detention.
Frail and in precarious ill-health — three were suffering from kidney failure, one carried a urine bag — they provided Pakistan with a harrowing reminder of what befalls those who have been detained and ‘disappeared’ by the military and intelligence agencies.
The Supreme Court’s hearing on the Adiyala prisoners’ case may mark an important milestone. In the weeks since, enforced disappearances and illegal detentions have been discussed in Pakistan with fervour and an openness never seen before.
Courts have displayed a new willingness to pursue government officials responsible for disappearances and illegal detentions.
Though many question the timing and political motivations underlying the court’s newfound interest in these cases, its involvement nevertheless offers a glimmer of hope and a unique opportunity for those seeking the truth about the thousands that have disappeared or remain in the military and intelligence agencies’ custody.
The problem of disappearances and illegal detentions has only become worse in recent years. Though it is often associated with Balochistan, the Adiyala prisoners’ case highlights how the issue of missing persons is now a major problem throughout Pakistan, particularly in Khyber Pakhtunkhwa and the Federally Administered Tribal Areas (Fata) where thousands have been secretly detained.
Perhaps most alarming is that the government now claims that the ongoing detention of individuals like the Adiyala prisoners is entirely legal.
Thanks to the Action (in Aid of Civil Power) Regulations (AACP) in Fata and the Provincially Administered Tribal Areas, issued by President Zardari in July 2011, the Pakistani government claims to have the legal power to detain individuals for an indefinite period of time, without charge or trial. This is in clear violation of their fundamental constitutional rights.
Though cast as legal reform that would bring detentions under the law and militants to justice, in effect, the AACP regulations are becoming a fallback for the military and intelligence agencies to simply continue holding large numbers of people indefinitely.
It is evident that the AACP regulations fail to protect the most basic of constitutional rights as they explicitly sanction the continued indefinite detention of individuals without charge or trial. The situation is even worse on examining how the AACP regulations are implemented in practice.
Despite provisions requiring registration, notification and access to family members, many detainees remain in secret, incommunicado detention, their families unable to visit them and with little or no information as to their whereabouts.
The result is a clever game, rigged so that detainees and their families always lose. When families file cases pressing the government for information about loved ones, the authorities initially claim ignorance and deny having detained such individuals.
When there is compelling evidence that an individual was, in fact, picked up by the government the authorities resort to delays and excuses in order to avoid providing any real answers.
Faced with further pressure the authorities simply state that an individual has been shifted to an internment centre and is being held legally pursuant to the AACP regulations. Pending a constitutional challenge to the regulations themselves, this is where the road ends — with little to no improvement in the situation of detainees or their families.
To be sure, combating militant groups and terrorists in Pakistan is a daunting challenge and detaining suspected militants is both necessary and proper. Such individuals must be brought to justice, and prosecutions are indeed difficult due to lack of evidence, proper investigations and the sensitive, sometimes dangerous nature of such cases.
But measures like the AACP regulations are no solution. Instead, they legitimise illegal detention and grant the military unchecked, sweeping powers to search, seize, investigate and indefinitely detain ordinary civilians. Such laws are a giant step backwards for Pakistan’s hard-fought political progression and threaten the freedoms and rights of all Pakistani citizens.
Real, justified fears have historically prevented many in civil society from speaking out about disappearances and detentions. But the flurry of judicial activity and media coverage since the Adiyala case holds new promise.
Though perils persist, it marks at the very least an opening and a critical opportunity for civil society to push for even greater space to speak out and increase public pressure to end such abuses.
All elements of Pakistani civil society, from NGOs and political parties to religious and professional organisations, can work together to do so.
Lawyers and bar associations should continue to raise the issue of disappearances and detentions in the media and in public, provide support to those representing detainees and their families and urge the judiciary to continue hearing cases and aggressively pursue responsible officials.
Journalists should redouble their efforts to investigate and cover cases of the missing, and educate the public with accurate, insightful reporting.
Human rights organisations and activists should lead the way in challenging unconstitutional detention practices, and engage political parties and all branches of government to ensure violations cease and those responsible are held to account. Civil society should also build on efforts to reach out to and work with victims and families of the missing to make sure their voices are heard.
Regardless of the underlying politics that may have led to such an opening, it is an opportunity that must be seized. Only seven Adiyala prisoners made it to the Supreme Court — four had already died in custody, one just weeks before the hearing. With many hundreds, perhaps thousands, more in detention, time is on no one’s side.
Kamran Arif is a lawyer from Peshawar and co-chairperson of the Human Rights Commission of Pakistan. Christopher Rogers is a human rights lawyer with the Open Society Foundations.