October 1st, 2021
A person who makes a false claim of enforced disappearance can be sentenced to a maximum sentence of up to five years and a Rs 100,000 fine, according to amendments recommended by the National Assembly standing committee on interior to a proposed bill on enforced disappearance.
The bill titled Criminal Laws (Amendment) Act 2021 on criminalization of enforced disappearance was tabled in the National Assembly on 7th June and referred to the standing committee on interior on the same day. In its report on 29th September, the standing committee recommended that the proposed bill should be passed by the National Assembly with amendments made by the committee.
In another twist to the proposed bill on criminilisation of enforced disappearance, the standing committee has recommended insertion of a new section 514 titled ‘The allegation or complaint in respect of Enforced Disappearance etc’.
“Whoever files a complaint or gives information that proves to be false he or another person has been subjected to Enforced, Forcible or Involuntary Disappearance, or an attempt has been made in this regard, he shall be guilty of an offence punishable up to five years imprisonment and fine up to one hundred thousand rupees,” reads subsection (1) of Section 514.
No officer, head to be charged without evidence
The new section also clarifies that no officer, including head of a state institution, will be charged with the offence of enforced disappearance unless there is direct evidence of involvement in the offence.
“Notwithstanding anything contained in any law for the time being in force, in respect of Enforced, Forcible or Involuntary Disappearance, no officer or functionary of State, including the departmental head, or head of an institution shall be charged with the offence if there is no evidence available to implicate such officer or functionary,” reads subsection (1) of Section 514.
The Criminal Laws (Amendment) 2021 bill is yet to be voted for passage in the National Assembly. However, the bill can now be put on the house agenda for a vote after presentation of the standing committee report on the bill to the house.
Under the proposed legislation, the offence of enforced disappearances will be punishable with up to 10 years imprisonment. However, opposition parties and rights group have expressed reservations on lack of legal mechanism in the proposed bill to hold perpetrators accountable.
In August, Human Rights Commission of Pakistan (HRCP) also expressed concerned that the bill lacked a concrete and practicable mechanism for identifying and holding perpetrators responsible and did not provide for reparations to victims and their families.
Definition of enforced disappearance
The bill proposed insertion of a new Section 52-B (Enforced Disappearances) into the Pakistan Penal Code (PPC) after Section 52-A.
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’.
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 as whoever 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.
While welcoming the tabling of the proposed bill on enforced disappearances, the United Nation’s Working Group on Enforced or Involuntary Disappearances called upon Pakistan in a communique in June to raise the proposed maximum sentence from 10 years to at least 25 years in the bill for the offence of enforced or involuntary disappearances.