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August 30,2016

Eliminate enforced disappearances

Asad Jamal

August 30 marks the International Day of the Victims of Enforced Disappearances. Since 2011 this day has been observed to remind UN member states of the steps they ought to take to eliminate the menace of enforced disappearances.

Pakistan’s performance in this regard falls far short of the desired level. Official statistics and information appearing in the media show that the number of enforced or involuntary disappearances, including arrest, detention and abduction – when these are part of or amount to enforced disappearances – have not decreased, at least not in any significant way. Equally significantly, Pakistan has failed to take steps to abandon legislative and policy frameworks which encourage enforced disappearances by granting its law-enforcement agencies, including its armed and paramilitary forces, impunity.

It would be useful to state at the outset that Pakistan is under obligation to eliminate enforced disappearances under international customary law as codified in the United Nations General Assembly Declaration on Enforced Disappearance 1992 and other instruments. Under the declaration, the act of enforced disappearance is an offence to human dignity which is condemned as ‘a denial of the purposes of the Charter of the United Nations’ as well as a grave violation of the human rights proclaimed in the Universal Declaration of Human Rights. Systematic use of enforced disappearance is recognised as a crime against humanity. These principles have also been recognised by the Supreme Court which in 2013 declared enforced disappearances a violation of the constitution of Pakistan.

The issue of enforced disappearances got prominence in the post-9/11 period when complaints started arising from all over Pakistan. Some cases taken to the Supreme Court made headlines in the national media. As a result of a Supreme Court order, the government of Pakistan notified the Commission of Inquiry for Missing Persons in 2010. It was constituted anew in 2011 as the Commission of Inquiry on Enforced Disappearances.

Periodic reports prepared by the commission are a good guide in assessing how far Pakistan has gone in fulfilling its international obligations. It is apparent from the reports submitted to parliament that the commission, which started working in 2011, continues to receive complaints of disappearances in considerable numbers month after month. For instance, for the current year alone an average of 72 cases per month has been reported to the commission till July 2016. Month wise, 56 cases were reported in January 2016, 66 in February, 44 in March, 99 in April, 91 in May, 60 in June and 94 in July – making 510 cases this year alone.

The current commission had only 138 cases to dispose of at the time of its inception in March 2011. The number of cases received by it till July 31, 2016 has risen to 3,522. Out of these cases, 2,105 have been disposed of. The cases pending on July 31, 2016 number 1,417.

Under the powers granted to it, the commission hears families and witnesses, in general in the presence of representatives of most law-enforcement and intelligence agencies. The commission has held hearings in different parts of the country. On any given hearing anywhere, in one of the provincial capitals or the federal capital, dozens of family members of disappeared persons can be seen. They have been for years attending hearings without any progress.

Even if it is granted that a certain number of cases do not strictly fall within the definition of enforced disappearance, a significant number of such cases being reported on a continuous basis gives an idea of the continuing practice adopted by the state authorities. An oft-repeated assertion by certain state representatives – that most of such complaints are not believable – will remain unreliable unless convincing evidence in each and every case is made available as public record.

A case in point is that of Zeenat Shehzadi, a Pakistani citizen, and Hamid Ansari an Indian citizen. Hamid Ansari is a young Indian engineer, who illegally entered Pakistan to meet a Facebook friend. He was arrested in 2012. The relevant authorities denied any knowledge of him for a long time and eventually disclosed in a hearing in the Peshawar High Court that he was taken into custody by military authorities.

Zeenat Shahzadi an enthusiastic young woman belonging to a poor family had been following Ansari’s case at various fora including the commission since 2013 – till she was kidnapped in August, 2015. Her case is pending before the commission. At each hearing held in Lahore, the law-enforcement agencies come up with one pretext or the other for their inability to trace Zeenat. The commission has proved to be toothless in many such cases.

According to the reports made public, out of the 483 cases decided till July 31, 2016, 111 were dropped for not being enforced disappearances and 372 persons were said to be recovered or traced; 189 persons, more than 50 percent of the total, reportedly returned home. The reports do not reveal where these people were during the period that they could not be traced. Such details are probably stated in the report submitted to the prime minister of Pakistan. However, one thing is clear: the state has been protecting those who are responsible for acts of enforced disappearance. This practice must stop.

Since 2011, the Pakistani state has been enacting or using laws which either blatantly grant immunity and impunity to – or de facto encourage – enforced disappearances. These laws have ostensibly been enacted to counter terrorism but they in fact strengthen the policy of systematically making individuals --whoever may be seen as suspect --disappear. Such laws include the Actions in Aid of Civil Power Regulation applicable to Fata and Pata, the Protection of Pakistan Act 2014 as well as the Frontier Crimes Regulation.

The former two clearly hold the law-enforcement agencies immune from being held accountable for illegal detentions carried out in the past. The amendments to the Army Act and the amendment to the constitution have only strengthened the mechanism of impunity.

If Pakistan must stand in the league of civilised nations, it must take remedial measures as required under international law to provide relief to the victims of enforced disappearances as well as their families.

The writer is a lawyer.

Twitter: LegalPolitical


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