June 10th, 2021
By Rehan Piracha
Human rights organisations and representatives of families of missing persons have welcomed the tabling of the much-awaited bill in the National Assembly to criminalise enforced disappearances but have said that its implementation should lead to ending the culture of impunity in the country.
On June 8, Federal Minister for Human Rights, Shireen Mazari introduced the bill titled the Criminal Laws (Amendment) Act, 2021 which states that a new Section 52-B (Enforced Disappearances) should be inserted into the Pakistan Penal Code (PPC) after Section 52-A. It came a day before the Day for Baloch Missing Persons that was marked by the people of Balochistan on June 9. A large number of people have gone missing from Balochistan.
Under the proposed legislation, the offence of enforced disappearances will be punishable with upto 10 years imprisonment.
Speaking to Voicepk.net, Harris Khalique, the Secretary General of Human Rights Commission of Pakistan (HRCP), welcomed the tabling of the bill. “We see it as progress towards ending enforced disappearances in the country,” he said. At the same time however, he said that enforced disappearances could not end, until all missing persons were recovered and those responsible were held accountable.
“It is the HRCP’s stated position that the State should charge and hold an open and fair trial of those it suspects of carrying out enforced disappearances,” underlined Khalique. “Enforced disappearance does not focus only on one individual; with this an entire family and community is punished, which is inhuman,” he said.
Khalique hoped that the government would implement the legislation in letter and spirit after it is finally enacted. “We already have laws but they are not implemented,” he added.
Nasrullah Baloch, the chairman for Voice for Balochistan Missing Persons, has been representing families of missing persons from Balochistan for two decades. He welcomed the proposed legislation to criminalise enforced disappearances. However, he pointed out that previous investigations had affixed responsibility on state institutions in the case of enforced disappearances, but were scrapped in a bid to save officials from facing punishment.
“In the case of my uncle Ali Asghar Bangalzai, who is missing for the last 19 years, a joint investigation team had concluded it to be enforced after 12 years but the JIT was scrapped and a new JIT was constituted,” he said.
Baloch said when he questioned a senior police official about the new JIT, the police official expressed his helplessness in proceedings against the state institutions.
“My request to state institutions is that supremacy of the law is a key to development and peace in the country,” he said.
Baloch hoped that once the legislation is enacted to criminalise enforced disappearances the investigations would proceed without any interference so that those found guilty are punished.
Inam Abbasi, president of Sindh Sabha, said his organization was still holding protest camp outside Karachi Press Club with families of missing persons from Sindh. Abbasi said the mere enactment of another law would not end enforced disappearances. “Unless the whole system is changed nothing will happen,” he said.
“The bill will face a similar fate with other legislations in the country that forbid enforced disappearances,” he said.
Amina Masood Janjua, chairperson of Defence for Human Rights, appreciated the government for tabling the first-ever bill to criminilise enforced disappearances in the country. “The definition of enforced disappearance in the bill is same as that of the United Nations which is commendable,” she said. “The treasury and opposition members should set aside party differences to pass this important legislation to curb enforced disappearances in the country.”
Meanwhile, speaking in TV programme Spotlight, PML-N leader Talal Chaudhry and PPP Senator Shahadat Awan said that the bill has been tabled in the National Assembly but the government had not explained on how the legislation would be implemented.
“Since 1868, we have laws that no private person, law enforcement agency or police can detain a person unlawfully,” he said. He said normally a magistrate acts against a police official for detaining a person illegally for six hours. “It’s unclear who will implement the legislation, and who will conduct investigation and whom they will act against,” he said.
Talal Chaudhry suggested that the political parties, government and state institutions hold an in-camera session to discuss implementation of the proposed legislation.
“The Commission of Inquiry on Enforced Disappearances has turned out to be ineffective,” the former state minister for interior said. “The head of the commission has not given a single FIR in cases of enforced disappearances despite having the authority to do so,” he said.
Chaudhry also disputed figures of the COIED on enforced disappearances saying that presently there were 8000 pending cases of enforced disappearances. According to the COIED, 2,296 cases of alleged enforced disappearances were pending before the commission till May.
International and local human rights organizations, Amnesty International and Human Rights Watch have repeatedly expressed concern over enforced disappearances in Pakistan.
In a scathing briefing paper on the working of the state-appointed Commission of Inquiry on Enforced Disappearances (COIED) in September last year, the International Commission of Jurists said the COIED has wholly failed to address entrenched impunity, leaving victims and their loved without any redress. “The Commission of Inquiry on Enforced Disappearances (COIED) has failed in holding even a single perpetrator of enforced disappearance responsible in its nine years,” the ICJ said.
The UN Working Group on Enforced Disappearance has also described a “culture of entrenched impunity” regarding enforced disappearances in Pakistan. The WGEID has received 1144 cases of allegations of enforced disappearances from Pakistan between 1980 and 2019, of which some 731 remained unclarified as of May 2019. Pakistan has also not allowed country visits from the WGEID since its last visit in 2013. The WGEID has received 1144 cases of allegations of enforced disappearances from Pakistan between 1980 and 2019, of which some 731 remained unclarified as of May 2019.
Definition of enforced disappearance
According to Section 52-B of the bill, the term ‘enforced disappearance relates to the arrest, detention, abduction or any other form of deprivation of liberty by an agent of the State or by person or group 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.
However, the proposed bill lists presence of three constitutive elements for an act to be classified as an ‘enforced or involuntary disappearances’. Firstly, any enforced disappearance must have an element of ‘an unlawful or illegal deprivation of liberty or a deprivation of liberty that was legal but no longer is. Secondly, it should be an act allegedly carried out by agents of the State or by person or group of persons acting with the support, authorization or acquiescence of the State. Lastly, the element of ‘refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person’.
Punishment forcible or involuntary disappearances
The bill also proposes insertion of new sections 512 and 513 in the Pakistan Penal Code. According to Section 512, the perpetrator of an offence of forcible or involuntary disappearances is defined aswhoever commits, orders, solicits or induces the commission of attempts to commit, is an accomplice to or participation in the forcible or involuntary disappearances of a person or group of persons.
Under Section 513, the punishment for forcible or involuntary disappearances of any person from Pakistan or within Pakistan has been set at imprisonment up to 10 years along with fine. The offence of forcible or involuntary disappearances, which will be non-bailable and non-compoundable, will be tried in a sessions court.
Closure for families of missing persons
Outlining the objectives of the bill, Federal Minister for Interior Sheikh Rashid Ahmed states that the proposed legislation is aimed at provide closure to the families who are in immense pain owing to the fact that the fate and whereabouts of their loved ones are still unknown. The bill will criminalise the heinous crime of enforced disappearance with impunity that surrounds the practice of enforced disappearances and bring the perpetrators of these crimes to justice, he states.