LAST month, the government extended the tenure of the Commission of Inquiry on Enforced Disappearances for another three years. The latest extension makes the CoIoED, initially established for six months in March 2011, one of the longest serving public inquiry commissions in Pakistan’s history.
The extensions in the commission’s mandate seem to indicate it has been a success. Yet many victims’ groups — especially from Balochistan — have boycotted the CoIoED, and other human rights organisations are deeply critical of its work. The UN Human Rights Committee and the UN Working Group on Enforced or Involuntary Disappearances have also expressed concerns about the commission, including the insufficient resources allocated to it and law enforcement agencies’ non-compliance with its binding orders. Why, then, is the commission’s tenure repeatedly extended?
The notification establishing the commission gives it a broad mandate, key of which include to “trace the whereabouts of allegedly enforced disappeared persons”, “fix responsibility on individuals or organisations responsible”, and “register or direct the registration of FIRs against named individuals … who were involved either directly or indirectly in the disappearance of an untraced person”.
While the commission has done well to document cases of enforced disappearances and “trace the whereabouts” of a number of disappeared people, it has completely failed in holding perpetrators accountable. The commission’s monthly reports show that even when missing persons have eventually been found in internment centres or other detention facilities in the country, it has not fixed responsibility on any person or organisation, or directed the registration of FIRs against those responsible.
No perpetrators of enforced disappearances have ever been brought to account.
This is not surprising, as — curiously — the CoIoED’s terms of reference specify that it may direct the registration of FIRs only in the disappearance of an “untraced” person. This effectively means that once a person subjected to an enforced disappearance is found, the commission no longer has the competency to register FIRs against perpetrators. It also ignores the fact that the crime of enforced disappearance does not depend on whether the disappearance is ongoing or not — states have the obligation to hold perpetrators accountable even after the disappeared person is traced or released.
A related issue is the definition of enforced disappearance used by the CoIoED, which the commission’s regulations define as “such person as has been picked up/taken into custody by any law enforcing/intelligence agency, working under the civilian or military control, in a manner which is contrary to the provisions of the law”.
Compare this to the definition of enforced disappearance under international law: 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”.
The CoIoED’s definition is problematic for a number of reasons. It does not recognise secret detention, or detention in which the whereabouts of the detainee is not disclosed as enforced disappearance. It does not recognise that if deprivation of liberty is not acknowledged or the whereabouts of the detainee are not disclosed, even if this is ‘legally’ mandated, it may still be considered a disappearance. And it does not recognise that the “authorisation, support or acquiescence of the state” in such detentions may also make them enforced disappearances if other conditions are met.
These omissions are particularly relevant because multiple ‘legal’ regimes in Pakistan effectively legitimise enforced disappearances. A number of people convicted by military courts for terrorism-related offences, for example, were reportedly subjected to enforced disappearance by military authorities as far back as 2009, and kept in secret detention for many years before their military trials. The laws empowering military courts to try terrorism-related offences have retrospective effect, and all arrests or detentions made even before the Army Act was amended in 2015 (and subsequently in 2017) are deemed to have been made ‘legally’ under the military’s new powers. The CoIoED’s narrow definition of enforced disappearance would very likely exclude such people from being considered ‘disappeared’.
Similarly, the controversial Actions (in Aid of Civil Power) Regulations, 2011 gives the government or “any person” authorised by it sweeping powers of indefinite detention without charge and judicial supervision. It seems unlikely that the commission would consider such detentions enforced disappearances — even where families are not informed about the whereabouts of their loved ones — as AACPR has the force of law.
Even if the CoIoED recommends registration of FIRs against alleged perpetrators, its regulations are silent as to the specific offence for which they would be charged. Significantly, while it has the mandate to hold perpetrators of enforced disappearance responsible, Pakistan’s criminal laws do not currently recognise enforced disappearance as a distinct crime.
This is why enforced disappearances are reported to the police as ‘missing persons’ cases, or as those of abduction, kidnapping or wrongful confinement. As discussed in detail in a recent report by the International Commission of Jurists — No More “Missing Persons”: the Criminalisation of Enforced Disappearances in South Asia — these offences are inadequate classifications of enforced disappearance cases. They do not recognise the gravity of the crime; do not provide for commensurate penalties; and do not address the need to remedy the harm to families of those disappeared who are not legally considered victims.
We should recall that Pakistan has a long history of establishing commissions of inquiry to investigate matters of public importance, including allegations of gross human rights violations. Though ostensibly formed to provide a measure of public accountability, COI have promoted impunity by diverting investigation of human rights violations and crimes from the criminal justice process into a parallel ad hoc mechanism vulnerable to political interference and manipulation.
We must reconsider the utility of the CoIoED. If in seven years it has failed to bring even a single perpetrator of enforced disappearance to account, it is now time for a more effective mechanism to provide justice to the hundreds, if not thousands, of victims of enforced disappearance in the country.
The writer is a legal adviser for the International Commission of Jurists.
Published in Dawn, October 3rd, 2017