The International Day of the Victims of Enforced Disappearances was observed across the world on Aug 30 with Pakistan yet to implement different recommendations put forward by the UN Working Group on Enforced and Involuntary Disappearances (WGEID) after its visit to the country in 2012.

The UN General Assembly had on Dec 21, 2010, decided to observe Aug 30 as the International Day of the Victims of Enforced Disappearances from 2011 and had called upon member states, the UN system and other international and regional organisations as well as civil society to observe this day.

The most important international legal instrument dealing with practices of enforced disappearances is the International Convention for the Protection of All Persons from Enforced Disappearances, which was adopted by the UN General Assembly on Dec 20, 2006. This convention entered into force on Dec 23, 2010. So far, Pakistan has neither signed nor ratified the convention.

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.

Presently, in Pakistan cases of “Enforced Disappearances” are pending before multiple forums, including the superior courts and the Commission of Inquiry on Enforced Disappearances (CIED), which was set up in 2011. This commission is chaired by retired Justice Javed Iqbal, a former puisne judge of the Supreme Court of Pakistan, who is also chairman of the National Accountability Bureau.

Since its inception till June 2019, the CIED has received 6,156 complaints from across the country, including Gilgit-Baltistan and Azad Jammu and Kashmir, of which 3,938 cases were disposed of while 2,218 are still pending.

According to data of CIED, 1,772 of the “missing” persons had returned back home, 769 were traced in different internment centres, 481 in prisons, whereas bodies of 190 persons were found. The CIED had deleted 726 cases due to multiple reasons of either incomplete address, withdrawal of complaints or not being cases of “Enforced Disappearances”.

The highest number of complaints were received from Khyber Pakhtunkhwa (not including merged tribal districts), which were 2,322, of which 365 persons had returned home, 587 were in internment centres and 598 in prisons, whereas bodies of 46 were found. A total of 1,190 (51.2 per cent) complaints were disposed of whereas 1,132 (48.7 per cent) have still been pending.

Also, scores of habeas corpus petitions have been pending before different high courts specially Peshawar High Court wherein disappearances of people have been challenged by their family members.

On the orders of CIED and high courts, FIRs have also been registered in scores of cases, but police in different provinces, including Khyber Pakhtunkhwa, have failed to investigate these cases and trace the missing persons.

Presently, two UN bodies – The Committee on Enforced Disappearances and the Working Group on Enforced or Involuntary Disappearances (WGEID) – coexist and collaborate where possible to assist states in tackling the issue of “enforced disappearances.”

The WGEID had undertaken a 10-day visit to Pakistan in Sept 2012 and then released a report about it. It had put forward several recommendations in its report. One of the important recommendations was: “A new and autonomous crime of enforced disappearances should be included in the Criminal Code, following the definition given in the 2006 Convention on the Protection of all Persons against Enforced Disappearances, and with all the legal consequences flowing from this qualification.”

The Working Group had also looked into the issue of alleged impunity enjoyed by the intelligence agencies in cases of “enforced disappearances.” It had stated that “The Working Group is concerned at the repeated allegations that intelligence agencies are not sufficiently supervised by and accountable to civil authorities.”

It had recommended that clear rules and dedicated institutions should be created to ensure the oversight and accountability of law enforcement and intelligence agencies.

The group put forward a proposal that appropriate training should be given to members of law enforcement and intelligence agencies in the field of human rights, with particular focus on enforced disappearances.

In a follow-up report in Sept 2016 the Working Group had mentioned that according to reports that it had received, there was a climate of impunity in Pakistan with regard to enforced disappearances, and the authorities were not sufficiently dedicated to investigate such cases and hold the perpetrators accountable.

While the government institutions continued to deny any illegal detentions on their part, there were scores of cases reported when despite their denial a detainee was later found in their custody. In certain cases, a detainee was subsequently tried and convicted by the military courts set up after the passage of the Constitution (Twenty-first Amendment) Act, 2015.

One of the interesting cases was that of Haider Ali, a resident of Swat who was sentenced to death by a military court in 2015. An FIR No 137 was registered against his alleged illegal detention on July 28, 2013, at Kanju police station as his case was pending before the CIED. While the government agencies continued to deny his detention, he was subsequently found in their custody.

As there is no exclusive provision in law about “enforced disappearances”, the perpetrators of such practices continued their acts with impunity. Presently, in such cases FIRs were registered mostly under section 365 of the PPC dealing with kidnapping or abduction against unidentified persons.

Section 365 of the PPC states: “Whoever kidnaps or abducts any person with intent to cause that person to be secretly and wrongfully confined, shall be punished with imprisonment of either description for a term which may extend to seven years, and shall also be liable to fine.”

Legal experts dealing with cases of “enforced disappearances” believe that the government has to come out of the state of denial as presently it has not been even accepting that this phenomenon exists here.

Published in Dawn, September 2nd, 2019