January 13th, 2021
On January 11th, 2021 the Islamabad High Court (IHC) while hearing a case filed by Zainab Zaeem, the wife of a missing person Omar Abdullah, issued a summons for the former secretaries of Interior and Foreign affairs.
Justice Moshin Kiyani of the IHC even went as far as to remark that if the officials fail to appear in the court on the next hearing then arrest warrants will be issued against them, calling the government “incompetent” over their inability to recover missing citizens.
The occurrence, though rare, is far from being one of a kind. Merely a week before, the same judge imposed a hefty fine worth Rs10 million on four government officials for their failure to trace the whereabouts of the citizen, Ghulam Qadir, who has been missing for over six years now.
Even though, of late, Justice Mohsin Kiyani has emerged as one of the most proactive in this ‘judicial crusade’ against enforced disappearances, he is not the only judge pushing back against this illegal practice.
From the Lahore High Court (LHC) summoning the District Police Officer (DPO) in a missing person case this week, to the Sindh High Court (SHC) bashing the police and a ‘Joint Investigation Team’ (JIT) over failure to recover missing persons, the first few days of 2021 saw an aggressive and broad-based response by courts against the of enforced disappearances.
The plague of rampant enforced disappearances has persisted for over a decade, but the rationale and acceptability of the practice are now on a steep decline, and the higher courts are on the frontline against this blatant violation of citizens’ right to life and liberty.
A positive development
“This is a positive development, to say the least. I think the judiciary has realized that they need to step in because this practice was getting out of control”, says Colonel Inam, Senior Advocate High Court, a campaigner against the practice of enforced disappearances and a former victim of the archaic practice himself.
“I think this shameful practice is unique to Pakistan alone and it is doing irreparable damage to foundations of our polity. No one but the police has the right to place citizens under arrest and that too through proper process stated in the law. Such extra-legal practices damage the trust between the citizens and the state and I think it’s the responsibility of other state pillars like the courts to step up”, continues Inam.
Even civil society organizations, lawyers, journalists, and rights activists have lauded the recent proactive approach taken by the courts to curb this menace.
Precedents and foundation for the Judicial Crusade
Colonel Inam credits, the present Chief Justice Islamabad High Court Athar Minallah for sowing the seeds of this judicial action.
“Justice Athar Minallah was the first one to take the government and the administration to task over a continued failure to recover missing persons. He was also the first justice to impose a fine of Rs one lac over non-recovery of missing persons.”
Colonel Inam believes that legal frameworks and precedents exist which not only empower but also put the onus on the Higher Courts to take a more proactive role in these cases. Pointing towards a 1994 judgment of the Supreme Court of Pakistan (a copy of which is available with voicepk.net) he says that “In the judgment, the supreme court advised the Higher Courts to utilize the power given to them under the article 199 of the constitution (Judicial Review) to ‘investigate’ the circumstances of mala fide and unlawful detentions if they occur to ensure the constitutional freedoms granted to every citizen of the country,”.
He believes that this 1994 judgment is the core precedent under which the higher courts are now able to respond in the way that they have.
The current developments though encouraging do give birth to some important questions.
For instance, if the practice has existed for over a decade, then why have the courts started reacting just now? Latif Afridi, President of the Supreme Court Bar Association (SCBA), has some interesting points to make in this regard.
“The phenomenon of ‘missing persons’ was largely justified under the garb of the war on terror. The argument was that it’s a wartime necessity. But now that all major operations against terrorism have concluded and the security establishment claims that we have all but won the war against organized terrorism there is no solid justification for the continuation of such extra-legal practices. I think this fact alone has created significant to action,” explains Advocate Afridi.
“The security establishment has assured community leaders several times that such practices will stop but they have not. So there was bound to be a response,” continues Afridi.
Discussing the role of the civil administration particularly the police in these incidents Afridi explains “It is important to note that police officials play a very central and sinister role in these disappearances.
They are complicit in the act by accompanying agency personnel during these abductions and when they are asked by the courts about the events they outrightly lie to judges. I think the courts are asserting their authority over the police force by taking them to the task.
The courts need the police to implement their decisions if the force lies to them and disobeys direct orders out of fear or loyalty to another institution then the courts will be frustrated and impose penalties on them,”.
Advocate Afridi also points to the possibility of an inter-institutional tussle.
Regardless of what the reasons for these actions are, this burgeoning trend is a fundamental step towards achieving the “rule of law” in the country in the truest sense.