The International Day of the Victims of Enforced Disappearances silently passed in the country on Aug 30 as the ongoing political crisis has pushed all other issues out of the public and media focus. With the cases of missing persons lingering on in different courts across the country for the last many years, there is no indication of resolution of the issue sometime in near future.

In December 2010, the UN officially declared that it would annually observe the International Day of the Victims of Enforced Disappearances on August 30, starting from 2011. On this day, the organisations like the UN and Amnesty International play role in creating awareness about enforced disappearances. These organisations believe that enforced disappearance is a crime and should not be used as a tool to deal with situations of conflict.

Enforced disappearances occur when people are arrested, detained or abducted against their will and when governments refuse to disclose the whereabouts of these people. Presently, two UN bodies – The Committee on Enforced Disappearances and the Working Group – coexist and collaborate where possible to assist states in tackling the issue of “enforced disappearances.”

This year the committee and the Working Group have urged the governments to support relatives of the disappeared by removing all obstacles hindering their search for loved ones, including through opening of all archives, especially military files.

The Working Group, having five members, was established by the UN Commission on Human Rights in 1980 to assist families in determining the fate and whereabouts of disappeared relatives. The Working Group continues to address cases of disappearances until they are resolved. Similarly, the 10-member Committee on Enforced Disappearances was established when the International Convention for the Protection of all persons from Enforced Disappearances came into force on Dec 23, 2010. The Convention affirms that enforced disappearances constitute a crime against humanity when practiced in a widespread or systematic manner. While the competence of the Committee is limited to those States that have ratified the Convention, the Working Group is able to consider the situation in all countries. While the Committee will be competent to deal with those cases of enforced disappearances which took place after the entry into force of the Convention, the Working Group may examine all situations before that. Pakistan has neither signed nor ratified the convention. Under the convention, no one shall be subjected to enforced disappearance. It states: “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearance.”

The convention provides that “enforced disappearance” is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorisation, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.

In Pakistan apart from constitutional guarantees against arbitrary detention, the Pakistan Penal Code also deals with wrongful restraint and wrongful confinement. Section 340 of PPC defines wrongful confinement as: “Whoever wrongfully restraint any person in such a manner as to prevent that person from proceeding beyond certain circumscribing limit, is said ‘wrongfully to confine’ that person.”

While presently around 500 cases pertaining to “missing persons” are pending before the Peshawar High Court, due to lack of cooperation by the intelligence and law enforcement agencies the whereabouts of scores of “missing persons” could not be traced. From time-to-time the high court issued directives to the ministries of defence and interior as well as the Khyber Pakhtunkhwa home department for taking steps for resolving this issue, but the intelligence agencies functioning under these ministries continued to use delaying tactics.

The President had on June 23, 2011, promulgated two almost identical regulations – Action (in Aid of Civil Power) Regulation for Fata and Pata – through which several powers have been assigned to the armed forces and civil administration. The law provides for setting up of internment centres where detainees could be kept for unspecified period.

Later, it was expected that the detainees in illegal custody of law enforcement agencies would be shifted to notified internment centres. Hundreds of people have now been interned in these centres, but still the phenomenon of “missing persons” persists.

According to a notification issued on July 20, 2011 by the provincial home secretary there are nine notified internment centers in the province. These centers are: sub-jail Paitham (Pak-Austrian Institute of Tourism and Hotel Management), Swat; sub-jail Fiza Gut, Swat; sub-jail at Malakand; district jails Lakki Marwat, Kohat and Timergara (Lower Dir); and Frontier Corps Forts at Drosh (Chitral), Chakdara and Timergara.

Another notification was issued by the additional chief secretary, Fata, on Aug 12 under which around 34 internment centers were notified.

Lawyers dealing with cases of missing persons believe that this phenomenon would continue to exist till conflicts in different regions are resolved. They believe that the security forces and intelligence agencies should follow the relevant laws instead of violating them as it has been bringing a bad name to these institutions.

Published in Dawn, September 1st, 2014