26th August, 2022
By Rehan Piracha
LAHORE: A Senate panel on Friday again deferred consideration on a bill on enforced disappearance after the Interior Ministry sought time to review objections to a clause which imposes a five-year sentence for lodging fake complaints.
In its last meeting on August 22, Pakistan Peoples Party (PPP) Senator Shahadat Awan apprised the Senate Standing Committee on Interior that the Criminal Law (Amendment) Bill, 2022 on criminalizing enforced disappearance had a clause under which a complainant or petitioner could be sentenced up to five years of imprisonment on filing a fake complaint. He said the clause would hinder public from filing petitions against forced disappearances. “There is a vital need to revisit the few parts of the bill,” he told fellow committee members. The Standing Committee advised the Interior Ministry to remove ambiguity in the bill, deferring its consideration till the next meeting on August 26.
However, the Interior Ministry sought more time to review objections when the standing committee met on Friday, Senator Shahadat Awan told Voicepk, adding that the standing committee decided to defer consideration of the bill. The PPP senator said he had pointed out the ambiguity in the punishment clause on how would a fake complaint would be adjudged. “Would a complaint of enforced disappearance would be deemed fake if the missing person returns home after a few days saying he had gone on his own or kidnapped?” the senator explained his objection to the clause.
Senator Mohsin Aziz, chairperson of the committee, said the interior ministry officials told the committee that the amendments proposed in the bill were already there in the existing law and there was no need for new legislation in this regard. The Interior Secretary informed the standing committee that a meeting of the committee chaired by the Law Minister would be held soon on the proposed bill and consideration of the bill by the committee should be postponed.
“The bill on enforced disappearance is also being handled by a cabinet committee, headed by Federal Law Minister, that includes members from our standing committee,” Mohsin Aziz told Voicepk.net. The standing committee is likely to consider the bill in October after taking inputs from the cabinet committee, he added.
The chairman committee deffered the discussion on the bill for a month according to the opinion of the committee members, a press statement released by the standing committee said.
The Criminal Law (Amendment) Bill 2021, was passed by the National Assembly on November 8, 2021. However, the bill on enforced disappearance has faced delays in Senate where on several occasions the then Human Rights Minister Shireen Mazari expressed her surprise that the bill had gone ‘missing’ in the Upper House. Mazari had also assured the Islamabad High Court that the legislation on enforced disappearance would be promptly passed to resolve the issue of missing persons in the country.
Activists and international rights organisations had expressed concern at inclusion of clause imposing punishment of false complaints. A person can be sentenced to a maximum imprisonment of five years and Rs 100,000 fine under Section 514 titled ‘The allegation or complaint in respect of Enforced Disappearance etc’ of the bill.
“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.
The 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.
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.