Aitzaz moves SC against ‘enforced disappearances’

ISLAMABAD: Senior lawyer and leader of Pakistan Peoples Party (PPP) Barrister Aitzaz Ahsan Wednesday challenged in the Supreme Court (SC) the unlawful practice of enforced disappearances, praying for declaring it as violative of various articles of the Constitution.

The former senator filed a petition in the apex court through Sardar Latif Khosa Advocate under Article 184(3) of the Constitution, making the Federation of Pakistan through federal interior secretary, chief secretaries of the four provinces, inspector generals of police of the four provinces as well as the Commission of Inquiry on Enforced Disappearances as respondents.

Aitzaz prayed to the apex court to declare that enforced disappearances are violative of, inter alia, Articles 4, 9, 10, 14, 19 and 25 of the Constitution besides declaring that the Commission of Inquiry on Enforced Disappearances does not adequately comply with legal and international standards.

Similarly, he prayed to the SC to set up an effective and purposeful Commission as done by the apex court in the case of Want Party PLD 2012 SC, 292.

Aitzaz Ahsan prayed to the court that the Commission should be headed by a judge of the Supreme Court as its chairman, who has, at least, two years ahead of him/her in office while members of the commission should be president Supreme Court Bar Association (SCBA), Pakistan Bar Council (PBC) through its vice chairman, presidents of Lahore, Sindh, Peshawar, Quetta bar associations, chairman Human Rights Commission of Pakistan, chairperson National Commission on Status of Women, director general of the Inter-Services Intelligence (ISI), additional director general of the Intelligence Bureau (IB) and president Pakistan Federal Union of Journalists.

He prayed to the apex court that the commission must be empowered to employ and associate any legal, technical, information-technology and medical experts as well as agency of the government for direction of the commission.

Aitzaz Ahsan prayed for direction to the authority concerned to ensure legal and international standards in formation of the commission, so that the amount expended out of the national exchequer for its expenses should be accounted for.

He requested the apex court to direct the federal government and the provincial governments to submit a list of all disappeared persons in the custody of the state in the court and direct the federal government and the provincial governments to prepare and submit a report probing and identifying the law enforcement and other officers responsible for the practice of enforced disappearances in the court within four weeks.

Aitzaz submitted that under the current constitutional dispensation, the enforced disappearances of civilians are violative of the Constitution, and an affront to the fundamental rights guaranteed therein.

He submitted that Article 4 guaranteed the right to individuals to be treated in accordance with the law; Article 9 states no person shall be deprived of life or liberty in accordance with the law.

Similarly, he said “Article 10(1) states no person, who is arrested, shall be detained in custody without being informed, as soon as may be, of the grounds for such arrest, nor shall be denied the right to consult and be defended by a legal practitioner of his choice”.

He submitted that “Article 10(2) states every person, who is arrested and detained in custody, shall be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate, and no such person shall be detained in custody beyond the said period without the authority of a magistrate”.

He submitted that the fact that persons are kept in undisclosed, secret, and unofficial detention facilities increases the potential of torture and inhuman treatment of those in custody.

“There is no public record of the arrest and detention while families and lawyers are not granted access to detainees for months,” he stated.

Aitzaz said that enforced disappearances create an atmosphere of terror across the country, adding that it is mostly a tool to suppress, and ultimately silent dissent.

“Instilling fear in the hearts and minds of citizens through enforced disappearances directly contravenes their right to speak freely,” he added.

Aitzaz submitted that throughout the years, in various decisions, the courts have ruled that enforced disappearances are contrary to fundamental rights and constitute a crime against humanity.

He recalled that the Islamabad High Court, in a case of enforced disappearance, had held that the state and its functionaries, instead of fulfilling the obligations imposed upon them as fiduciaries and trustees, resort to inhuman and cruel usurpation of fundamental rights.

“It is for this reason that enforced disappearance has been declared as a crime against humanity and indeed that is exactly what it is,” the petition said.

The former PPP senator submitted that recently, there has been a surge of enforced disappearances, and ‘re-appearances’ of citizens adding that such victims include journalists, politicians, bureaucrats and other dissenting voices.

Aitzaz mentioned the cases of Riaz as well as Sheikh Rashid and three PTI leaders who “went missing for weeks, only to ‘re-appear’ on the media via talk shows/press conferences delivering from a predictable script.

He contended that the same illegal and unlawful practice of enforced disappearances and ‘re-appearances’ also befell bureaucrats such as Azam Khan and Muhammad Ahmad Bhatti.