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Advice on disappearances

September 26, 2012

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PAKISTAN has a clear responsibility to expedite implementation of the eminently sensible recommendations made by the UN delegation on enforced disappearances.

The process is unlikely to be wholly fruitful without realising that the shabby treatment meted out to the delegation of the UN Working Group on Enforced or Involuntary Disappearances (WGEID) was not only unwarranted and in bad taste, it also betrayed a tendency to cover a festering sore under a tattered parchment of self-righteousness and the myth of national sovereignty.

The delegation’s plans for a 10-day visit to Pakistan were carried by the national media in July, several weeks before it was scheduled to arrive. At least the Foreign Office should have known that a UN mission does not visit any country without a formal invitation. Nobody took notice of the matter till the mission had landed in Islamabad.

All of a sudden a cacophony of malice broke out. Questions as to who had allowed a violation of Pakistan’s sovereign rights were raised. Several important state functionaries, including the prime minister, who is otherwise quite keen to be photographed with nonentities from foreign lands, declined to spare a few minutes for this delegation.

More surprising than any authority’s refusal was the snub to the delegation delivered by the honourable chief justice who, one was inclined to believe, was genuinely interested in mitigating the suffering of the victims of enforced disappearances and their families. If he had excused himself on the grounds of lack of time the decision would have caused no more than a moment of disappointment. But the pretext offered, that the matter being sub judice it could not be discussed with the WGEID, has set a precedent of questionable merit.

It may be possible to argue that the cases of the various persons listed in petitions before the honourable Supreme Court can be described as sub judice. But the matter has several aspects, such as official policy on disappearances, questions of administrative monitoring, and reparations, indeed the whole socio-political environment surrounding the phenomenon of disappearances, that are open to discussion. If all these questions are sub judice, how long will the media and human rights activists be allowed to discuss them?

Besides, modern international conventions do not bar attempts to probe and understand even matters that are unmistakably sub judice. Are international observers not allowed to oversee and monitor hearing of cases in which non-compliance with due process is alleged or suspected? Foreign observers were not even barred from the Bhutto trial. One hopes the chief justice’s observation in this case will not be treated as an unexceptionable ruling.

Some of the noise made against the WGEID could be attributed to ignorance of UN mechanisms. Although such ignorance is unforgivable it is less reprehensible than the tendency to berate the UN without cause. Those raising the bogey of national sovereignty could not have been unaware of their efforts to keep Kashmir on the UN agenda or the benefit Pakistan is deriving, despite its own inefficiency, from the operations of the various UN agencies in the country. True, there are problems inherent in the UN structure and the big power stranglehold over it has been an issue for decades but the world body’s humanitarian operations are not a point of contention.

It is possible that the critics of the WGEID mission were driven not so much by their disenchantment with the world organisation as by their desire to protect the case of disappearances from independent scrutiny. How does anyone answer the Baloch nationalists’ charge that the most powerful and imperious wing of the establishment greeted the WGEID on its arrival by ending a lull in the disposal of missing persons’ dead bodies and throwing a few of them by the roadside, and celebrated the mission’s departure with the dumping of two decapitated bodies? A warning also of the odds they face to all those who want the shame of disappearances to be put to an end.

Regardless of one’s feelings on the WGEID visit the need to treat enforced disappearances as a matter of supreme national concern and take an unbiased look at the mission’s preliminary findings cannot be contested. The main recommendations fall into four categories.

The most important proposal is to add enforced disappearance as a crime in the Penal Code and prescribe an appropriate punishment for it. The fact that this crime is being committed has been fully established. The report of the three-member judicial commission put the matter beyond doubt. The process of adding new offences to the Penal Code has never ceased. Some of the offences recognised over the recent past include gang rape, disrobing of women, terrorism and blasphemy. There is no reason why enforced disappearance cannot be identified as an offence distinguishable from and more serious than abduction and illegal detention. The convention on disappearances describes the systematic practice of enforced disappearances as a crime against humanity and suggests appropriate penalties which take into account its extreme seriousness.

The second category of recommendations calls for an adequate investigation and trial regime, protection of witnesses and victims’ families, and suspension of functionaries charged with the offence. All these are basic requirements of an adequate judicial remedy.

In the third category fall recommendations for the training of law-enforcement personnel and intelligence agencies in the field of human rights, with special reference to enforced disappearances, and for the establishment of an effective system of oversight by superior authorities. These steps are needed to prevent enforced disappearances which should be as high a priority as punishment of the guilty.

Fourthly, the victim families should be guaranteed financial aid, rehabilitation facilities and legal relief to deal with problems created by the disappearance of the person who holds the title to property. All this is part of a state’s humanitarian obligations.

Assuming that every Pakistani citizen is entitled to due and equal protection of the law, whether he is an angry Baloch or one suspected of any crime, the state cannot possibly shirk its responsibility to show due resolve in eradicating the scourge of enforced disappearances. Action along the lines indicated, and before the WGEID report is examined by the UN Human Rights Council next year, will be especially welcome as it will enable Pakistan to regain some of the international community’s goodwill that it often thoughtlessly puts at stake.