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Vicious proposals

December 19, 2013

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THE honourable members of the federal task force on disappearances have resolved to undo whatever has been done over the past decade by the judiciary and civil society to find a just solution to enforced disappearances.

Involuntary disappearances, often wrongly described as cases of missing persons, mean in Pakistan the unannounced arrest of citizens and their indefinite detention without charge, in complete violation of their right to be detained only under judicial orders and with information provided to their families and counsel.

The efforts of the judiciary, civil society, affected families and international organisations (such as the UN Working Group on Enforced or Involuntary Disappearances — WGEID) have all along been concentrated on two points: i) to secure the appearance of the illegally detained persons in courts; and ii) to hold the officials concerned accountable.

These efforts failed on both counts. Despite the Supreme Court’s best efforts, in the heyday of its activism, all illegally held detainees were not produced in court. And all attempts to call those responsible for enforced disappearances to account have been frustrated.

Now comes a deadlier blow: a law has been drafted to legitimise extended detention without charge.

The people have as usual not been taken into confidence about the draconian draft law but the limited disclosure of its sinister contents is enough to cause alarm to defenders of the rule of law.

One recommendation that might escape censure is that ‘enforced disappearance’ will be made a criminal offence. This suggests that the authorities are not unaware of the recommendations of the UN working group.

One hopes the proposal will go beyond Section 340 of the Pakistan Penal Code and will respect the UN group’s call for “a new and autonomous crime of enforced disappearance… following the definition given in the 2006 Convention for the Protection of All Persons Against Enforced Disappearances, and with all the legal consequences flowing from this qualification”. (The WGEID has described how action should be taken against offenders.)

Under the proposed law, security forces are to be given blanket immunity for picking up a person if they have credible evidence against him and detaining him for more than 90 days. According to reports “it is a demand of the armed forces and intelligence agencies to strengthen their hands by equipping them with the authority to detain a person for an extended period”. It should be possible to examine this strange demand.

Detention of a suspect before and during his trial is justified for two reasons. First, proof of his crime is to be secured in the form of his confession and, secondly, he is to be prevented from continuing with his mischief. If the first objective cannot be achieved through torture, which is the only form of investigation/interrogation known in Pakistan, for more that 14 days, chances are that he will be in no position to help the investigators afterwards.

Anybody kept in extra-judicial custody for more than 14 days is exposed to the risk of death or disability. If a person’s detention beyond 90 days is considered necessary to prevent him for doing anything wrong, why should he remain under non-judicial custody?

Except for the plea for financial relief to families of victims, the whole scheme is not only contrary to the recognised principles of law and the inviolable guarantees of human rights and fair trial, it also dismisses with contempt the rulings of the Supreme Court. It seems the 10-day long proceedings of the apex court this month made as little impression on the powers that be as water poured on a duck’s back.

The people have a right to know on what grounds the authors of the antediluvian suggestions have rejected/ignored the recommendations of the three-member judicial commission of 2010. That commission had reprimanded the police for being party to illegal arrests as part of disappearances. The criticism has been met by freeing the security forces from reliance on the police. How ingenious!

The commission did concede the possibility of a special law on disappearances but one should like to know to what extent the proposed measure is in accord with the commission’s report.

What nobody seems to be talking about is the commission’s call for concrete steps to rein in the intelligence/security agencies. Instead of trying to bring the working of these agencies under control, their demands for blanket immunity are being received with awe and reverence incompatible with even the elementary principles of modern jurisprudence.

References to non-conviction of a rape accused amounts to trivialising the painful issue of enforced disappearances and adds insult to the injury caused to the affected families who are bearing cold and rain and trudging long distances with swollen feet in search of justice. Next, somebody might say the law enforcers should be allowed to shoot dissidents because rapists cannot be convicted. The bill will send a wrong and dangerous message to Balochistan in particular.

If the citizens sent up for trial, for rape or treason or terrorism or anything else, cannot be sentenced for want of evidence the answer does not lie in incarcerating them without reason; it lies in cleaning the investigation and prosecution agencies of corruption and incompetence, in training them in non-custodial methods of investigation, and in improving the training of both lawyers and judicial officers.

The people cannot be punished for the inefficiency of the privileged custodians of law or the collapse of a decrepit legal order.