A very informative article is written by Mr. Babar Sattar in The News related to Dr. Afia Siddiqi case(must read).
Saturday, August 16, 2008
The writer is a lawyer based in Islamabad. He is a Rhodes scholar and has an LL.M from Harvard Law School
“We have captured 689 [members of Al Qaeda] and handed over 369 to the United States. We have earned bounties totalling millions of dollars. Those who habitually accuse us of ‘not doing enough’ in the war on terror should simply ask CIA how much prize money it has paid to the government of Pakistan,” boasts General Musharraf on page 237 of his autobiography. Who were these 369 Al Qaedians and how many of them are citizens of Pakistan, the general doesn’t state. Was Dr Afia Siddiqui amongst them? Did she fetch the general hefty prize money for being kidnapped from Karachi in 2003 under the watchful eye of his regime and transported to the US penitentiary in Bagram? Can a government indulge in a trade more reprehensible than trafficking citizens?
The general further states in In the line of Fire (page 238) that “the policy followed by Pakistan on the extradition of foreigners has been first to ask their countries of origin to take them back. If a country of origin refuses (as is normally the case), we hand the prisoner over to the United States.” Whence did the general derive this authority to script his own extradition policy? Did no one tell this man – who, to the misfortune of our troubled land and its battered populace, has been at the country’s helm for too long – that in Pakistan the extradition of citizens and foreigners alike is governed by a law called The Extradition Act, 1972? This law mandates that “every fugitive offender shall be liable to be apprehended and surrendered in the manner provide in this Act.”
Under Section 6 of the Extradition Act a foreign state must requisition the Pakistani government for the surrender of a fugitive offender. To pursue the request, the government must order a judicial inquiry into the extradition offense to be conducted by a magistrate pursuant to Section 7. Under Section 11, if “the federal government is of the opinion that the fugitive offender ought to be surrendered” in view of the enquiry conducted by the magistrate under Section 8, “it may issue a warrant for the custody and removal of the fugitive offender and for his delivery at a place and to a person to be named in the warrant.” While the Pakistani government has the right to simply refuse a foreign state’s extradition request without even ordering an enquiry, it has no authority whatsoever to hand a prisoner over to the US without abiding by the judicial due process.
It is not that Pakistan and the US do not have a sufficient basis for exchanging fugitives under the formal extradition framework. The two countries also have a treaty arrangement too. An extradition treaty was signed between the US and the UK in London on Dec 22, 1931, and its provisions were extended to British India from March 9, 1942. As a successor state Pakistan inherited the treaty obligations. And after the Extradition Act entered into force on Feb 20, 1973, the Pakistani government formally endorsed the US-UK treaty for being in operation in Pakistan, in accordance with Section 3(1) of the Extradition Act. But why should the US bother to go through a formal extradition process with all its attendant procedural and substantive protections (read inconvenience) when the Pakistani government is more than pleased to sweep up citizens and foreigners alike in the name of fighting terror and cart them off to secret US detention centres across the globe?
It is true that the Bush administration has singlehandedly run into dirt the image of the US as a friend and advocate of rule of law. Human rights and civil liberties groups within the US are dismayed at the post-9/11 legislative acts and executive policies of the Bush administration and the substantive harm they have done to erode established standards of human rights protections around the globe. The infamous Patriot Act is one such measure. On Nov 13, 2001, President Bush passed the Military Order – “Detention, Treatment, and Trial of Certain Non-Citizens in the War Against terrorism” – under which non-US nationals can be meted out military justice at the president’s discretion: tried in a military court devoid of ordinary procedural protections; detained in conditions prescribed by the Secretary of Defence; and with no right of appeal before any court of law.
Thus in its post-9/11 madness. The US has deliberately introduced discrimination within its justice system on the basis of nationality. What won the Bush administration almost as much disrepute domestically and around the world as the Patriot Act/Military Order was the leaked Torture Memo drafted by the US Department of Justice to advise the Bush Administration and the CIA. It stated that the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment implemented under title 18 of the US Code “prohibits only the most extreme acts by reserving criminal penalties solely for torture and declining to require such penalties for cruel, inhuman or degrading treatment or punishment.” Torture was defined as physical pain “equivalent in intensity to the pain accompanying serious physical injury, such as organ failure, impairment of bodily function, or even death.”
Would parading alien prisoners naked or even their rape in US penitentiaries amount to torture? Not under the legal advice rendered by the Department of Justice in the Torture Memo. The US laws and policies specially contrived to persecute non-US nationals is a matter of record, as are narratives of appalling abuses carried out with impunity in Abu Ghraib and Guantanamo under the Bush administration. Civilized countries have protested these despicable US laws and practices and also exhibited reluctance to extradite even foreigners to the US due to the knowledge that their basic rights will stand prejudiced post-extradition. But even in its deranged terror-phobic mode, the US has restricted itself to abusing and torturing non-nationals only.
One thing the Musharraf regime cannot be held liable for is nationality-based discrimination. The Afia Siddiqui case highlights the Musharraf regime’s policy of trafficking citizens and foreigners alike, oblivious to all legal and moral constraints.
Why fault the Bush administration for torturing Dr Siddiqui and denying her fundamental rights? Did President Bush swear an oath to protect and defend the Constitution and the citizens of Pakistan? The crucial question is not whether Afia Siddiqui can be tried in the US after being arrested in Afghanistan, but who ordered her kidnapping from Karachi and transportation to the Bagram prison in 2003 and who all in Pakistan are complicit in this illegal and shameful act. One of the most fundamental promises of our Constitution stated in Article 9 is that “no person shall be deprived of life or liberty, save in accordance with law.” Article 10 further guarantees that no person shall be arrested and detained for a period of over 24 hours without being produced before a magistrate.
Dr Afia Siddiqui has been denied these fundamental rights and so have hundreds of others who have been missing for years. How do our rulers sleep at night when they reign over a state that treats its own in the fashion that we have treated Afia Siddiqui and other missing persons? In face of such disgrace and illegality being perpetrated by the executive, can the judiciary pursue a conscientious course of action other than that being followed by Chief Justice Iftikhar Chaudhary—i.e., to require law enforcement agencies to account for disappeared citizens and plug their trafficking? The people of Pakistan and the PPP-led government must do all they can to highlight the atrocities that have been committed against Afia Siddiqui and provide her all the assistance she needs in defending herself against fabricated US charges – right out of a badly scripted movie.
But Dr Siddiqui’s life, liberty and dignity would not have been at the mercy of the US had she not been wronged by the Musharraf regime in the first place. There is no point directing all our ire against the Yanks when it is actually our saviours at home who are culpable in the first resort. Did Chaudhary Pervaiz Elahi feel no shame while shedding crocodile tears in the Parliament over the treatment being meted out to Afia Siddiqui, despite the fact that she was kidnapped and hauled to Afghanistan under his government’s watch. Instead of passing hollow resolutions against the US to reclaim the nation’s honour, the parliament should (a) order an inquiry into the kidnapping of Afia Siddiqui, (b) ensure that all other missing persons are accounted for immediately, and (c) include in the charge-sheet against the General his admission of carting individuals to the US in utter disregard of our legal and constitutional provisions.