A photo by an unknown artist about power politics.

Sameer Mehrab

The role of law in Baloch-Pakistan conflict

enforced disappearances, missing persons, pakistan military

Why ask the Baloch to follow Pakistan’s constitution, when the state itself disregards its laws in punishing the Baloch for not following Pakistan’s constitution?

The constitution is a social contract between the state and its citizens to govern and to be governed under a set of agreed-upon laws. The Baloch people had no role in the formulation of Pakistani constitution and considers Pakistani state as an occupying force. On the contrary, Pakistan considers Baloch as its lawful citizens and expect them to respect the state’s constitution. Therefore, it makes sense for the state institutions to punish the dissident Baloch in accordance with its own judicial system.

Let’s put it in context.

In the beginning of the agricultural era, city states first emerged as political entities mostly in Fertile Crescent around 5,500 BC. Sumer was one of the first of these city states where the first written laws emerged. The code of Hammurabi or laws of Hammurabi is the first written law ever recorded in the history of human civilization dating back to 1754 BC in the Mesopotamian city of Babylon. Hammurabi was the sixth king of Babylon who sanctioned and enacted these codes of ancient laws. Partial copies of these laws still exist on stone stele or mud slabs.

It cannot be ascertained if these laws were based on previous ancient Mesopotamian or Babylonian laws or were they simply the creation of Hammurabi himself. In today’s standards, these laws might sound brutish or unequal. Articles such as ‘’an eye for an eye” or “a tooth for a tooth” might sound inhuman or discriminatory, yet we are left to wonder what was these ancient people thinking and why they took such troubles to form laws and write them down to run their society.

This trend is not confined to one region or one human civilization. Any primitive or advance human society ever formed in the history of human civilization heavily relied upon certain laws to run their societies. No matter in what degree such laws might satisfy our today’s perceptions of justice, the evolution of human societies and progress of civilization goes hand in hand with the progress of laws. Laws were used throughout human history to govern societies, though we have witnessed more than once laws being used to subjugate, supress and exploit fellow men.

In the 17th and 18th century, European colonizers imposed laws on the native people of their colonies in Asia and Africa to justify their occupation of native lands and to maintain their superiority over the native population. These laws legalized the occupation and criminalized any form of resistance from the indigenous people.

Yet, it is one of the basic criterion for human society to have a set of laws written or unwritten, either agreed upon by all the segments of society or forced by a certain segment on the others.

As societies and states became more complex, the primary city states turned into empires, mostly through conquest and war, leading to the annexation of weaker states into powerful ones. To govern or run these empires or super states, the need arose for more sophisticated and comprehensive laws. These laws were of paramount importance in creating moral authority to exercise power.

There were laws to deal with issues of loan, land dispute, property rights, taxation and punishments rewarded for crimes (like the “Book of Punishment” in ancient China).

When the ancient Greek lost the Peloponnesian War, they needed a scapegoat to blame for their defeat. They chose Socrates, an elderly philosopher who had made many enemies by asking simple questions to his fellow country men. But, even in those times, they resorted to a public trial, and a jury handed over the death sentence to the octogenarian philosopher in 399 BC. We wonder why not the rulers just killed the old man for being the cause of defeat of a whole nation as they believed or wanted to believe. It is because even the ancient Greeks needed moral basis to punish someone they did not like. Societies and rulers just do not resort to mob justice or summery executions. They devise laws to give justification to their doings. Even the least advanced, unjust and authoritarian societies strive to give the impression of being just and try to give the impression that their actions are based on justice and moral correctness.

Often the masses force the ruling elite to rule according to the law in an effort to curtail the absolute powers of a king or an authoritarian ruler. Magna Carta was signed by the King John of England on June 15, 1215 after being forced by his barons under the threat of a rebellion.

Magna Carta had 61 clauses, but the most important one must be its clause 39   which says that “no freeman shall be captured or imprisoned … except by lawful judgment of his peers or by the law of the land”.

Magna Carta is not only the essence of the English common law but it was the first time that a monarch had been forced to accept the idea that he will  exercises his powers under the ambit of the law.

When, centuries later, the French revolted against their king in 1789, known as the French Revolution, it was declared in Article 6 of the Declaration of the Rights of Man and of the Citizen that no one should be arrested without a judicial order. It also gave the people the right to resist against oppression.

This idea of human rights, which basically started with Magna Carta and matured through time and experiences of human societies, originates from the man’s quest to create just and moral societies which are governed by certain sets of laws, thus empowering the individual subjects of the state.

This also gave birth to the idea that the state derives its legitimacy through a social contract with its subjects, meaning participation of its citizens in formulating legislation. The state can only exercise authority and power over its subjects through laws made with the consent of its citizens. The ruling classes or state officials will all be subjected to the same laws.

Under a social contract, an agreement between the ruler and the ones who are being ruled, the terms of engagement are defined by laws formulated through legislation and mutual consensus by the elected representatives of people. These laws will be implemented by the government and interpreted by the judiciary.

After the World War II, Western countries, horrified by the atrocities of Nazi Germany and Japanese military state, tried to define a post-war world order through international bodies such as the United Nations. Their aim was to prevent the resurgence of such states which can take the world to the verge of complete destruction.

When a state exercises power and holds monopoly over violence, it is bound to respect its own constitutional laws, courts and investigation system, or else there will be complete chaos.

This criterion is the basis of the post-war modern state formulation and is one of the distinguishing points between a rough state and a responsible one, between a non-state group which terrorises the people and a state that protects and serves its people.

Once a state stops respecting and following the laws from which it derives it legitimacy, it loses the moral and legal grounds to rule and exercise authority over its citizens. Its subjects, at least on theoretical grounds, reserve the right to resist such rule.

Most states in the Middle East and South Asia formed in the post-colonial era like to regard themselves as modern nation states pretending to have certain set of laws in dealings with their own people as well as other nations of the world. But the relationship between these states and their citizens is mostly based on coercion and subjugation.

The use of violence is ever-present in all dealings of these states with their subjects. To justify their violence and provide legitimacy to their rule, these states use laws as a tool of power.

Most of the ruling elites in these states who inherited power from the Western colonizers come from families who served as sidekicks and collaborators of colonial masters. These rulers not only inherited power from their European masters, they also inherited their approach to ruling their subjects.

To justify their colonial rule and provide legitimacy to the occupation of native lands and people, colonisers presented the pretext that they had introduced the uncivilized native savages to civilization, and law and order. Because only the European had the knowledge to run their societies and usher them into the modern age, occupying their land was the white man’s burden. They were doing the natives a favour.

Nevertheless, European colonial states ruled their colonies in accordance with some laws, however flawed and unjust they were. If they had to punish their subjects, they did so by following a certain legal process. That does not make the crimes of European colonial powers less ugly or acceptable, but at least they owned up their crimes.

For example, no matter how discriminatory it was, racism in South Africa was enshrined in the law in order to preserve so-called white racial superiority over the black African natives. If someone rose against this unjust system there were laws to punish them.

Nelson Mandela was arrested and brought to a court of law and was given the right to legal defence and representation. He was tried in front of South African people and all the world. Although he was imprisoned for more than two decades for a very just demand, the racist South African state owned up its crime under the pretext of its (unjust) laws.

When we think of oppression and suffering and injustice, we like to believe it is a thing of the past. Today, most people believe to be living in an era of enlightenment, justice, equality and democracy. It is true in many cases. But there have been an emergence of post-colonial states which have proved to be immune to any accountability under any legal system.

States like Pakistan, by-products of British colonial era, have stooped to a new low. Pakistan’s state institutions — security agencies such as military and paramilitary forces, intelligence agencies – have often bypassed the laws, judiciary and the constitution of the state. The armed forces of Pakistan expect from everyone else to obey the law and surrender to the writ of the Pakistani state but they themselves are not bound or answerable to such restrains. Military generals stage coup d’états, rig election and hang politicians. They order abduction and torture and extrajudicial killing of journalists, human right activists and anyone who raise voice against their crimes. They even got away with a genocide in the former East Pakistan, now Bangladesh. The harrowing truth is that not a single Pakistani general has been investigated or held accountable for their crimes. None has faced trial.

Pakistani military holds absolute monopoly over violence in Pakistan. They often use it against the people who they consider as anti-state or non-conformist, like the Baloch.

The Baloch are a distinct cultural and linguistic entity who speak an Indo-Iranian language. Their culture is different from the people of the sub-continent and the fertile Indus Valley.

The Baloch were never part of the British India. They were annexed by force into the Pakistani state which never bothered to form a social contract with them, meaning they now live in a state they never aspired or envisioned. The state’s laws and customs are foreign to them. Although Balochistan forms more than 40 percent of Pakistan’s total landmass, the Baloch people are a minority due to their small population in comparison with other Pakistani ethnicities. Even if Pakistan resorts to the best democratic model imaginable, the Baloch will never be able to form laws or influence constitutional amendments ever.

As the Baloch have failed to assimilate into the mainstream Pakistani political culture, the central government policymakers see them as a threat to the state’s existence. Thus, the military has taken it upon itself to protect Pakistan by eliminating the Baloch — through economic exploitation, denial of cultural and linguistic rights and changing the Baloch demography. The use of force through direct military interventions in Balochistan is the vital part of this policy in order to check any dissent from the indigenous Baloch population. The judiciary and federal civilian governments endorse this policy as they see it in the broader Pakistani national interest, choosing to keep silence on the military’s extrajudicial acts in Balochistan.

The wish of the Baloch people to keep their distinct identity alive has invited the wrath of Pakistani deep state. Pakistani military considers the Baloch demand of preserving their distinct identity as a cover for their desire to secede from the Pakistani state, a treason under Pakistan’s law.

The laws which the Baloch are asked to follow were never formed with their consent or participation.  Nevertheless, Pakistani state should at least follow its own laws in punishing the Baloch for disregarding the laws imposed upon them.

Any state or state institution’s demand from its citizenry to accept its writ must precede by complying with the laws from which it drives its writ and legitimacy. Any modern state that fails to comply with its own laws or act lawfully should lose legitimacy to rule and exercise power on its citizen.

The modern states are not only expected to follow their own constitution, but also respect the international laws they have signed upon.

Pakistan is a member of the United Nations and a signatory to the UN’s Universal Declaration of Human Right, which was adopted in Paris on December 10, 1948, as a result of the horrors of World War II.

In the preamble of deceleration in the 3rd paragraph, it says:

“Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law”.

It recognizes that once basic human rights are denied to any human being and are not granted through peaceful and lawful mean there is always the risk of rebellion as the last resort against tyranny and oppression.

Article 5 of the declaration reads that “no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment”.

Article 7 says that “all are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination”.

Article 9 states that “no one shall be subjected to arbitrary arrest, detention or exile”.

In the case of the Baloch, Pakistan has stubbornly refused to follow its own constitution as well as the international laws.

The Pakistani military has forcibly disappeared thousands of Baloch, who are unfortunately called missing persons, of all ages; even schoolchildren have not been spared in order to punish their parents or relatives for their separatist politics.

Aftab Younis is an eight years old child abducted by the Sindh Rangers from Karachi Pakistan from his home in broad day light in front of his family members on October 28, 2017. He is still missing. Like other thousands of Baloch, Aftab has never been charged or presented before a court of law. He was just made a ‘missing person’.

Some of the thousands of Baloch missing persons have turned up dead, their bodies bearing grisly torture marks. Noor Ahmed, a primary schoolteacher, was abducted by the military on July 28, 2016, and his tortured body was found on January 2, 2018. He remained ‘missing’ during those two years. He was not in a prison, he was not presented in a court, his family was not told about his whereabouts and no one knew what his crime was.

Noor Ahmed or Aftab Younis are just two examples from thousands of cases of extrajudicial arrests or killings in Balochistan. Even according to the Pakistan’s own Commission of Inquiry on Enforced Disappearances, the number of missing persons is in thousands. Yet, not a single personnel of military or paramilitary forces, or intelligence agencies is under investigation or has been tried in court. Leave high-ranking military personal, not a single sepoy has been convicted for such grisly crimes. Pakistani judiciary and parliament have often admitted their failure to make the military accountable for such breach of the constitution.

According to the Pakistani law of habeas corpus under section 491 code of the criminal procedure 1898, a person illegally or improperly detained in public or private custody within such limits be set at liberty; and that prisoner detained in any jail situated within such limits be brought before Court to be examined as a witness in any matter pending or to be inquired into in court.

However, the Baloch are being denied these very laws or judicial proceedings. The missing person will never see a court or will not be given the right to legal defence and representation. Family members of these missing person have often demanded that they should be presented before a court of law even if they have committed a crime. They should be charged, jailed or even hanged. The worst of the fears of the relatives of the missing persons is to never being able to see their bodies which are dumped in isolated places after years of torture in secret military dungeons.

Pakistani state and its military generals conveniently bypass their own laws and constitution, yet try to impose them upon the Baloch in order to provide legitimacy to their occupation. Once the state bypasses its own laws, they by default do not apply on the common people.

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Sameer Mehrab is a writer and co-founder of Balochistan Times. He often depicts Balochistan's socio-political dilemmas in his fiction and poetry. He is based in Canada.

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