Enforced and Involuntary Disappearances have become a national phenomenon in Pakistan.
Earlier this year, a number of bloggers and activists disappeared from major cities from the Sharif’s turf- Punjab
While there are reports that the practice of enforced disappearance has existed in Pakistan since at least the 1970s, such cases have been recorded in significant numbers in the early 2000s, beginning with Pakistan’s involvement in the US-led “war on terror” in late 2001. Since then, hundreds of people accused of terrorism-related offences have reportedly been “disappeared” after being abducted by security agencies and detained in secret facilities. The practice continues unabated until today, with spikes in numbers of alleged enforced disappearances every time the military launches an offensive in the North-Western region of Pakistan, notably in the Federally Administered Tribal Areas. (FATA).
Cases of enforced disappearances are also reported Balochistan, where the practice is used against political activists and people who are considered sympathetic to separatist or nationalist movements in the province. In recent years, there has been a rise of cases of enforced disappearance in Sindh, where political activists have largely been targeted.
The practice has now become a national phenomenon. In August 2015, Zeenat Shahzadi, a Pakistani journalist who had been following the alleged enforced disappearance of an Indian engineer, Hamid Ansari, went “missing” from Lahore. According to Zeenat’s family, she had been receiving threatening phone calls asking her not to pursue the case before her alleged enforced disappearance. Two years later, her fate and whereabouts remain unknown. Zeenat’s case is one of the rare cases of alleged enforced disappearance where the victim is a woman. Earlier this year, a number of bloggers and activists were also allegedly “disappeared” from major cities in Punjab.
There is a wide range in estimates of the overall number of cases. Defence of Human Rights, a non-governmental organization working towards the recovery of disappeared persons, has reported that more than 5,000 cases of enforced disappearance have still not been resolved.
The Voice of Baloch Missing Persons alleges 18,000 people have been forcibly disappeared from Balochistan alone since 2001. The officially constituted Commission of Inquiry on Enforced Disappearances, on the other hand, reports 1,256 cases of alleged enforced disappearance as of 31 July 2017.
The Human Rights Commission of Pakistan, which documents human rights violations in 60 selected districts in the country, has documented nearly 400 cases of enforced disappearance since 2014 from the 60 districts it monitors. 53 Thus, even taking the most conservative estimates, a significant number of enforced disappearances remain unresolved in the country. The Government has failed to bring perpetrators to account in even a single case involving enforced disappearance. On the contrary, it has enacted legislation that facilitates the perpetration of enforced disappearance – including by explicitly legalizing forms of secret, unacknowledged, and incommunicado detention – and giving immunity to hose responsible.
NATIONAL LEGAL FRAMEWORK
Enforced disappearance is not recognized as a distinct crime in Pakistan. On the rare occasion that police register criminal complaints in such cases, they do so for the crimes of “abduction” or “kidnapping”.
Sections 359 to 368 of the Pakistan Penal Code relate to the crimes of “kidnapping” and “abduction”. The crime of kidnapping is of two kinds: kidnapping from Pakistan and kidnapping from lawful guardianship, and is punishable with a maximum of seven years imprisonment and a fine.
The crime of “abduction” is regulated by section 362 of the Penal Code and is defined as “whoever by force compels, or by any deceitful means induces, any person to go from any place.” Section 364 prescribes a punishment of ten years imprisonment for the crime of “kidnapping or abducting in order to murder”. Section 365 relates to kidnapping or abducting “any person with intent to cause that person to be secretly and wrongfully confined” and prescribes a punishment of a maximum of seven years imprisonment.
Police also register complaints of enforced disappearances under section 346 of the Penal Code that relates to “wrongful confinement in secret”, and prescribes a penalty of two years imprisonment. When registering a complaint under these provisions for alleged enforced disappearances, police often refuse to identify members of the security or intelligence forces as the alleged perpetrators. In most cases, such complaints are filed against “unknown persons”.
Pakistan’s Constitution guarantees the right to life, liberty and security of a person; the right to a fair trial; and right to freedom from arbitrary arrest and detention as “fundamental rights”. Allegations of violations of these constitutional protections, which are necessarily invoked in cases of enforced disappearance, have been challenged at the Supreme Court and high courts as human rights petitions.
Families of “disappeared” people have also made habeas corpus petitions in the high courts and the Supreme Court under Article 199 and 184(3) of the Constitution respectively, requesting the courts to find out the whereabouts of their “missing” loved ones. Courts have responded by directing concerned authorities to “trace” the whereabouts of “missing persons” and producing them before court. However, despite the defiant attitude and repeated failure of members of security forces to follow directions of the courts in cases of enforced disappearances, the courts have refrained from using its contempt of court powers to compel authorities to implement their orders.
The Supreme Court first took up the issue of the widespread practice of enforced disappearances in Pakistan in December 2005, when it took suo motu notice under Article 184(3) of the Constitution of a news report citing the growing numbers of enforced disappearances in the country. Soon after, the Human Rights Commission of Pakistan (HRCP) petitioned the Supreme Court under Article 184(3) to take notice of more cases of enforced disappearance. The HRCP submitted a list of 148 “missing persons” – individuals allegedly subjected to enforced disappearance – to the Supreme Court.
During the hearings, the Supreme Court acknowledged evidence establishing that many of the “disappeared” were in the custody of the security agencies and summoned high level military intelligence officials before the Supreme Court to explain the legal basis of the detention and to physically produce the detainees.
As the number of cases of enforced disappearances pending in the Supreme Court steadily grew, the Court directed the Government to establish a Commission of Inquiry on Enforced Disappearance to investigate enforced disappearances across Pakistan and to provide recommendations to curb the practice. The Government complied with the Court’s orders and constituted a commission in 2010. The mandate of the Commission expired in December 2010, and in March 2011, the Interior Ministry formed a new Commission to continue its work.
The 2011 Commission was initially established for six months, but its mandate has since been extended a number of times, and the Commission remains in operation at the time of writing. Among other functions, the Commission has the mandate to “trace the whereabouts of allegedly enforced disappeared persons”, “fix responsibility on individuals or organizations responsible”, and “register or direct the registration of FIRs against named individuals…who were involved either directly or indirectly in the disappearance of an untraced person.”57 Despite the broad mandate, the Commission has failed to hold perpetrators of enforced disappearances criminally accountable.
In October 2012, the Supreme Court issued an interim order in what is known as the “Balochistan Law and Order case”. The Court held that there was “overwhelming evidence” implicating the Frontier Corps (a paramilitary force) in cases of “missing persons” and acknowledged that at least a hundred people were still “missing” from Balochistan. The Court also noted that the issue of “missing persons” has “become a dilemma as their nears and dears are running from pillar to post spending their energy despite poverty and helplessness but without any success, which aggravated the mistrust not only on law enforcing agencies but also on civil administration.”
A year later, in one its strongest judgments yet on the practice of enforced disappearances, the Supreme Court held in the Mohabbat Shah case60 that the unauthorized and unacknowledged removal of detainees from an internment centre amounted to an enforced disappearance. The Court expressed concern at the “Kafkaesque workings” of the security forces and held that “no law enforcing agency can forcibly detain a person without showing his whereabouts to his relatives for a long period” and that currently, there was no law in force in Pakistan that allowed the armed forces to “unauthorizedly detain undeclared detainees”. The Court gave reference to a number of international instruments including the DED and ICPPED, and said that the practice of enforced disappearance is considered a “crime against humanity” all over the world.
Finally the Court held that armed forces personnel responsible for the enforced disappearances should be dealt with “strictly in accordance with law”. Notably, the Supreme Court also held that even though Pakistan has not yet become a party to the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), principles enunciated in the Convention are applicable in Pakistan in the interpretation of other rights such as the right to life. The Government responded by filing for a review of the judgment, asking the court to delete remarks implicating the agencies as such findings could “demoralize the troops”.
In March 2014, after repeated court orders, the defense minister lodged FIRs for wrongful confinement against some military officers allegedly responsible for the “disappearances”. However, the provincial government reportedly referred the matter to the military for further investigation and possible trial under the Army Act, 1952. Since military trials are secret and not open to the public, what became of the case is not known.
COMMITMENTS AND RECOMMENDATIONS
The Pakistani Government has committed to criminalize enforced disappearances on multiple occasions. However, it has taken no concrete steps to fulfil this commitment.
During Pakistan’s first Universal Periodic Review in 2008, Pakistan accepted recommendations made by France, Brazil and Mexico to ratify the Convention on Enforced Disappearances. The Convention, among other obligations, requires enforced disappearance to be made an autonomous crime.
Four years later, during Pakistan’s second Universal Periodic Review, the Government once again received a number of recommendations asking it to ratify the Convention and make enforced disappearance a distinct crime. This time, Pakistan “noted” the recommendation on the ratification of ICPPED, but accepted recommendations related to the criminalization of enforced disappearance.
Pakistan is up for review before the Human Rights Council for the third time this year. However, the Government has taken no steps towards implementation of the accepted recommendations.
There have been numerous other calls on the Government to recognize enforced disappearance as a distinct crime. For example, the Government constituted a “Task Force on Missing Persons” in 2013 to provide recommendations on how to deal with the prevalent practice. The Task Force submitted its report in December 2013. While the report has not been made public, members of the Task Force have revealed that one of the recommendations in its report was the criminalization of the practice.
UN HUMAN RIGHTS MECHANISMS
On 26 February 2013, the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID) published its report on Pakistan, following the WGEID’s visit to the country in September 2012.
The report expressed concern at the continuing practice of enforced disappearances in Pakistan and made a series of recommendations to the government. One of the recommendations was that the crime of enforced disappearance be established and included in the Criminal Code of Pakistan in line with the definition given in the Convention on Enforced Disappearances. The WGEID also recommended that Pakistan review its “constitutional, legislative and regulatory provisions, in particular ‘preventive detention’ regimes and rules allowing for arrest without warrant”, and ensure “deprived of liberty shall be held in an officially recognized place of detention.”
In its follow up report to the Human Rights Council in September 2016, the WGEID regretted that “most of the recommendations contained in its country visit report have not been implemented”, and again reiterated the importance of recognizing enforced disappearance as a distinct, autonomous crime.
Similarly, in its Concluding Observations following the first review of Pakistan’s implementation of the Convention against Torture and Other Cruel, Inhuman and Degrading Treatment, the Committee against Torture also recommended that Pakistan “should ensure that enforced disappearance is a specific crime in domestic law, with penalties that take into account the grave nature of such disappearances.”
The UN Human Rights Committee also made similar recommendations in its Concluding Observations issued after Pakistan’s first ICCPR review in July 2017. The Committee expressed concern at the “absence of explicit criminalization of enforced disappearances in domestic law” and recommended Pakistan should “criminalize enforced disappearance and put an end to the practice of enforced disappearance and secret detention.” The Committee also urged that Pakistan should also ensure that “all allegations of enforced disappearance and extrajudicial killings are promptly and thoroughly investigated; all perpetrators are prosecuted and punished, with penalties commensurate with the gravity of the crimes…”
At the time of writing, Pakistan has taken no steps to implement the recommendations related to enforced disappearance made by the WGEID, the Committee against Torture or the Human Rights Committee.
-(EXCERPTS FROM A ICJ REPORT released on Aug 29, 2017)
ICJ stands for International Commission of Jurists