No end in sight

Published March 4, 2014

ON Feb 26, 2013, the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID) published its report on Pakistan, following its visit to the country in September 2012. The report expressed concern at the continuing practice of enforced disappearances and made a series of recommendations to the government.

A year later, despite the growing scale of the practice, Pakistan is further than ever from meaningfully addressing the serious crime of enforced disappearances.

Many of the laws and policies adopted by the government this past year have made a mockery of the Working Group’s report and Pakistan’s national and international human rights commitments. A close look at the report, particularly its recommendations, is essential, especially as Pakistan is in the process of drafting a new law on enforced disappearances.

The WGEID urged Pakistan to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (Convention on Enforced Disappearance). The government has made no progress towards ratification. Instead, it has sought to undermine an attempt by the Supreme Court to apply the principles enshrined in the convention.

In a commendable judgement passed in the ‘Muhabat Shah’ case in December 2013, the SC had held that the Convention on Enforced Disappearance was applicable in Pakistan as it was inextricably linked with the right to life guaranteed by its Constitution. The right to life is also recognised by the International Covenant on Civil and Political Rights (ICCPR), which Pakistan ratified in 2010.

The government, however, challenged the ruling, arguing that as Pakistan has not ratified the convention, the Supreme Court could not apply it in Pakistan.

The WGEID also recommended that the crime of enforced disappearance be included in the criminal code in line with the definition given in the convention.

Despite hundreds, if not thousands, of people ‘missing’ in Pakistan following the apparent abduction by or with the complicity of the state, enforced disappearances are still not specifically criminalised. This is particularly deplorable as Pakistan accepted a recommendation made during its 2012 review, which called on the government to criminalise enforced disappearances.

The WGEID acknowledged that Pakistan was facing grave security challenges. However, it pointed out that under international law, including Article 7 of the Declaration on the Protection of All Persons from Enforced Disappearance and the ICCPR, enforced disappearances cannot be justified under any circumstances.

In this context, the WGEID expressed concern over the extensive powers given to security agencies under Pakistan’s anti-terror regime and recommended that Pakistan amend provisions of the Anti-Terrorism Act 1997 and Actions (in Aid of Civil Power) Regulations 2011, which appeared to facilitate enforced disappearances.

The government ignored the WGEID’s recommendation and promulgated perhaps the most draconian anti-terrorism law the country has seen in the form of the Protection of Pakistan Ordinance, 2013. Section 9 of the PPO allows the government to withhold information regarding the location of detainees, as well as their place and grounds of detention for any “reasonable cause”.

This provision is an affront to the rule of law. It seeks to place detainees beyond the protection of the law, and denies them legal personality, which is absolutely prohibited under the ICCPR and general rule of law principles. Effectively, it seeks to legalise the practice of enforced disappearance.

The Working Group emphasised the importance of fighting impunity for perpetrators of human rights violations and expressed concern that no state agent has been convicted in relation to acts of enforced disappearance.

The SC reiterated the WGEID’s call to bring perpetrators of enforced disappearance to account in the ‘Muhabat Shah’ case referred to above. The government, however, filed for a review of the judgement, asking the court to delete remarks implicating the security agencies in enforced disappearances as such findings could “demoralise the troops”.

Furthermore, the PPO also grants blanket immunity to state agents for acts done in “good faith” and provides that any person detained before the ordinance came into force shall be deemed to have been detained pursuant to the ordinance.

This retrospective immunity undermines the progress made in the last few years by the superior courts of Pakistan to bring perpetrators of enforced disappearance to account and is likely to entrench the already pervasive impunity enjoyed by the security forces, particularly related to human rights violations.

One hopes that the proposed law on enforced disappearances — reported to be in its final stages — takes the Working Group’s recommendations more seriously. Refusal to do so will be a damning indictment of Prime Minister Nawaz Sharif’s government’s failure to meet its commitment to uphold Pakistan’s international human rights obligations.

The writer is a legal advisor for the International Commission of Jurists (ICJ).

reema.omer@icj.org

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