August 30, 2021
By Munizae Jahangir
As the protests against enforced disappearances grow louder and the world marks the International Day for Enforced Disappearances, in Pakistan, it may be the other way round. While top officials in the country have in recent background briefings, expressed their desire to end enforced disappearances, it seems it is only to give the crime a ‘legal cover’ of sorts.
A high-level official went so far as to defend enforced disappearances as a necessary evil, saying that it was essential to tackle exceptional security challenges that emerged after 9/11.
“After 9/11 countries around the world made new laws to prosecute terrorists, but there were none made in Pakistan,” complained the top official.
But when one examines the list of missing people, it is clear that a number of those missing are Baloch nationalists, rights activists and some journalists. Moreover, not only new laws like the Actions (in Aid of Civil Power) Regulation, 2011 were created that sanctioned enforced disappearances in the former tribal areas but also military courts were empowered to try civilians for certain terrorism-related offences in January 2015 through the 21st Amendment to the Constitution and amendments to the Pakistan Army Act, 1952, which were in operation for a period of two years.
Shabbir Hussain Gigyani a human rights lawyer and a counsel for the petitioner who challenged the Regulation 2011, terms it ‘the most draconian law’ in the country, saying its provision has given unbridled powers to security forces to detain a suspect in internment centres without a trial and for an indefinite period of time.
“The Frontier Crimes Regulation, often dubbed as a black law which violated fundamental rights, enforced in erstwhile FATA appears benign seen in comparison with the Regulation 2011,” he said.
Waiting endlessly for legal recourse
The Actions (in Aid of Civil Power) Regulation, 2011 faces a legal challenge in the Supreme Court after the Peshawar High Court set aside Regulation 2011 as well as Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, 2019, in a landmark judgment on 17th of October, 2019 declaring it to be against the Constitution.
The Supreme Court issued a stay against the PHC verdict, following appeals filed by the federal and provincial governments. The matter is still pending before a five-member bench of the apex court for about one-half years. In the last hearing of the bench, the then-attorney general had told judges that the government is in process of bringing legislation to replace the Actions (in Aid of Civil Power) Regulation, 2011, says Shabbir Hussain Gigyani.
Meanwhile the Khyber Pakhtunkhwa Actions (in Aid of Civil Power) Ordinance, also lapsed as the provincial government failed to extend it.
On 30 March 2019, the expanded jurisdiction of military courts also lapsed, after which cases were transferred to the anti-terrorism courts. However, the fate of internment centres that were created to keep those ‘missing’ or detained under Regulation 2011 is uncertain.
There are currently about 8,000 detainees held in internment centres in Khyber Pakhtunkhwa. Their fate hangs in the balance despite repeated applications to the apex court for an early hearing of the case.
Similarly, the apex court is yet to hear appeals against the acquittal of military court convicts by the PHC.
Sadaf Chughtai, the wife of missing person Mudassar Naaru believed that her husband was one of the many who were being held captive in these internment centres and safe houses and were reported as “missing persons”. She had often reiterated that Naaru was being held in one of the internment centres in Abbottabad.
According to the state-appointed Commission of Inquiry on Enforced Disappearances (COIED), this year in March a total of 714 new cases of enforced disappearances were reported across the country, showing a five times jump from 144 cases reported in February. The total number of pending cases with the commission was 2596 till March.
Since its establishment, the COIED has received a total of 7802 cases, out of which it has disposed of 5206 cases. Out of the total disposed cases, 2549 missing persons had reunited with their families; 864 were found detained in internment centres; 543 were imprisoned in jails, and 224 individuals were not so lucky as only their dead bodies were located.
The commission closed 1,026 cases due to not being enforced disappearances or had reasons of an incomplete address, withdrawal of complaints, and non-prosecution. Sadaf was hoping her Mudassar would be among the 2,549 who were released.
However, human rights activists have disputed figures of the COIED stating that families do not report many cases of enforced disappearances out of fear as well as in hope of securing the early release of their loved ones and therefore the numbers of those missing are much higher. Last year HRCP claimed to have received a total of 61 direct complaints of enforced disappearances in the country.
Prime Minister Imran Khan and former information minister Shibli Faraz have frequently spoken about legislation on enforced disappearances or missing persons in the country. After an Islamabad sit-in in February this year by relatives of missing persons from Balochistan, Shibli Faraz told reporters that the PM had given directives to the federal law minister to expedite legislation on missing persons.
“The families and relatives of missing persons only have one demand, which is to know whether their loved one is alive or not,” he said, hinting that the proposed law could allow security forces to detain suspects up to a year with a provision that their families are intimated about their detention.
According to statements from Shireen Mazari, Federal Minister for Human Rights, the draft bill will declare ‘enforced disappearances as a ‘criminal offence’.
But despite the passage of time, the draft bill has still not been tabled in the National Assembly, even after approval from the cabinet. It is unclear when it will be tabled, if at all.
At the same time, certain ministers in the government and the military have hinted that they are exploring the possibility of drafting a law, which will allow security agencies to detain an individual for up to a year without a formal charge.
This will be against the spirit of the constitution and common law. The issue of enforced disappearances also exposes the fissures with the PTI government. So while one set of ministers wants to criminalize enforced disappearances, others want to legalize it to benefit the extra-constitutional ways of the establishment.
It is unclear which who will win in the end. Meanwhile like Sadaf and Naaru’s three-year-old son, over 8,000 people are waiting for their loved ones and for some justice to prevail.