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ISLAMABAD: In a landmark judgement on Wednesday, the Islamabad High Court (IHC) defined the concept of enforced disappearance and declared that individuals involved in abducting and detaining citizens at unknown locations may be charged under the Anti-Terrorism Act (ATA).

The 47-page judgement, authored by Justice Athar Minallah in the case of a missing IT expert who was abducted from his home in F-10, has introduced strict penal consequences for officials involved in enforced disappearances.

The IHC also ruled that certain government functionaries were responsible for the criminal justice system’s failure to recover Mr Mehmood and fined them. It expressed displeasure with intelligence agencies – Inter-Services Intelligence, Military Intelligence and the Intelligence Bureau – and directed the federal government to bear the monthly expenses of the missing individual’s family.

In landmark judgement, court introduces strict consequences for officials involved in enforced disappearances

The judgement was passed on a petition filed by Mahera Sajid, the wife of missing IT expert Sajid Mehmood.

On March 14, 2016, around a dozen masked individuals arrived in two vehicles described as “double cabins” forcefully entered Mr Mehmood’s home in F-10 and abducted him.

The petitioner argued that individuals that forcibly took her husband appeared to belong to a state security or law enforcement agency, which was why she expected to be informed of his whereabouts. She filed a formal written complaint with the Shalimar police on March 15 when she did not receive any information until the next morning.

The father of the detenue, Capt Dilawar Khan, filed a complaint with the Commission of Inquiry on Enforced Disappearances on March 18.

According to a joint investigation team (JIT) report, the inspector general of Islamabad police had chaired a meeting with the members of the JIT that concluded that the abduction was an enforced disappearance, which was described as a cruel and inhuman act categorised as a crime against humanity.

Justice Minallah observed that it was the “duty and obligation” of the state to take prompt and effective action in the event of an alleged enforced disappearance.

“It is the duty of the Special Branch, Intelligence Bureau, the Inter Services Intelligence and the Military Intelligence to collect information and promptly report to the concerned functionaries regarding any incident of abduction of a citizen having the characteristics of an ‘enforced disappearance’ and to take effective measures in tracing the whereabouts of the victim,” he observed.

He noted that “these instrumentalities of the state are part of the JIT constituted under the regulations”.

“In the case of failure in fulfilling this duty the respective sector commanders shall expose themselves to being accountable and proceeded against.”

The court ordered the petitioner to be paid Rs117,500 per month, or such amount as may be determined pursuant to verification. The arrears must also be calculated and paid to the petitioner with effect from March 14, 2016.

The federal government has been directed to conduct an inquiry, through an officer not lower in rank than a federal secretary or a committee, into the failure of the criminal justice system.

The court noted that state functionaries had failed to perform their constitutional duty to protect the citizen. It has fined Defence Secretary retired Lt Gen Zamirul Hassan Shah, former Islamabad chief commissioner Zulfiqar Haider, former inspector general of Islamabad police Khalid Khan Khattak and former Islamabad district magistrate retired Capt Mushtaq Ahmed Rs100,000 each.

The Shalimar police station in-charge on March 14, 2016, Inspector Qaiser Niaz has been fined Rs300,000.

“The officials named above shall pay the costs through crossed cheques drawn in the name of the petitioner within ten days from the date of announcement of this judgment,” the court directed.

Enforced disappearance creates sense of fear

The IHC defined enforced disappearance as expressed in the United Nations International Convention for the Protection of All Persons from Enforced Disappearances, which defines enforced disappearance as the arrest, detention, abduction or any other form of deprivation of liberty by agents of the state of by persons or groups 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 of whereabouts of the disappeared person.

The verdict stated: “The phenomena of enforced disappearance is not new and has been widespread in many countries across the world. During World War II on December 07, 1941 Adolf Hitler, the German Chancellor issued ‘Nacht und Nebel’ (The Night of the Fog decree).

“The rationale for this official decree was to create a deterrent effect by making prisoners vanish without leaving a trace and refusing to give information regarding their whereabouts or fate to their family members… Their anguish and suffering cannot be comprehended because their loved ones are removed from the protection of the law. By removing a person from protection of the law gives the captors the freedom and license to do what they feel like.”

The verdict went on to say that this “creates an environment of uncertainty” for dependents and other relatives.

“The perpetrators get a license to subject the victim to torture, which is otherwise strictly forbidden under the law, and in the case of death it enables them to cause the body to vanish without a trace. The fundamental rights of the victims guaranteed under the Constitution become irrelevant and virtually suspended,” the verdict stated.

“It creates anguish, insecurity and fear for the close relatives, exposing them to grave economic and social consequences, particularly if the abductee is the sole breadwinner. It has the effect of creating a sense of fear and insecurity in society and, therefore, depending on the facts and circumstances, it may also attract the provisions and offences defined under the Anti Terrorism Act, 1997.”

Published in Dawn, July 12th, 2018