January 9, 2024
By Xari Jalil
On Wednesday, January 10, the federal cabinet, led by the law minister, sat down to approve a reconstitution of its committee on enforced disappearances (COIED).
The committee was reconstituted after former Interior Mnister Sarfaraz Bugti resigned and there was no chairman to lead the commission.
The Baloch protestors have been airing their disappointment regarding Sarafaraz Bugti as chairman of the commission since the very first day. But even as the vacancy for the missing persons’ commission is yet to be filled, the missing persons’ issue in the corridors of power remains to be seen.
Story of a Bill
Earlier on January 9, the Senate Secretariat left many questions lingering in the air after it announced that a bill about enforced disappearances never went “missing” and was “returned to the National Assembly” after being passed by the upper house of Parliament.
This came as a belated response to the queries of several lawmakers who had been asking what had happened to it ever since it was introduced and then passed by the National Assembly.
The Criminal Law (Amendment) Bill 2021 was introduced in the National Assembly by the interior minister in June 2021. It was passed by the National Assembly on Nov 8 2021. Better known as the missing persons’ bill, it sought to criminalise the practice of “enforced disappearances” that was primarily affecting Balochistan and parts of Khyber Pukhtunkhwa, in particular, the merged districts.
‘Enforced Disappearances are Undemocratic’
On August 30, 2021, speaking on the International Day of the Disappeared, then federal Minister for Human Rights, Dr Shireen Mazari had said on Monday that enforced disappearances were unacceptable in a democracy and the government was set to approve laws to make enforced disappearances a criminal offense.
She had said that the Standing Committee of the National Assembly on Interior had approved a bill on enforced disappearances just a week ago.
‘Bill Gone Missing’
But on January 3, 2022, Shireen Mazari said that the bill pertaining to enforced disappearances, passed by the National Assembly (NA), had now gone “missing”.
“We had prepared the bill regarding missing persons and it was passed by the [relevant] standing committee and the National Assembly. But it went missing after it was sent to the Senate,” she said.
Later, Dr Mazari had also claimed that she had been asked to appear at the ISI headquarters over the bill and that after the bill was tabled in the NA, it was referred to the interior committee where “invisible shadows” had tried to change its clauses. She said that the bill had ‘vanished’ on its way to the Senate.
Initially drafted by the previous Pakistan Tehreek-e-Insaf (PTI) government and championed by former Interior Minister Sheikh Rashid Ahmed, the National Assembly had initially passed the bill in November of the preceding year. However, it had to be reintroduced to the assembly after the Senate passed it on Thursday with a few amendments.
The Senate was now tasked once again with approving the bill to formalise it as an act of the parliament.
A Second Passage for the Bill
On October 22, 2022, the National Assembly passed, for the second time, a bill aimed at categorising enforced disappearances as a heinous crime. This followed the removal of a controversial section that prescribed penalties for individuals making false complaints.
In response to protests from lawmakers, primarily from parties within the ruling coalition, Law Minister Azam Nazeer Tarar agreed to retract the contentious Section 514 from the Criminal Laws (Amendment) Bill, 2022.
Following Tarar’s statement, Commerce Minister Naveed Qamar proposed an amendment to exclude the disputed section from the bill, which seeks to criminalise enforced disappearances through modifications to the Pakistan Penal Code 1860 and the Code of Criminal Procedure 1898.
The Bill received unanimous approval from the house.
‘Breaking Parliamentary Tradition’
Even after the second passage of the bill on enforced disappearances, it fell into parliamentary limbo. According to Senator Raza Rabbani, it broke parliamentary tradition and rules by passing amendments in the Senate’s amended version to its original bill.
In January 2023, in a letter to National Assembly Speaker Raja Pervez Ashraf, Senator Rabbani of the Pakistan Peoples Party, who was also a former chairman of the Senate, pointed out the anomaly in the passage of the Criminal Laws (Amendment) Bill, 2022, relating to enforced disappearances that the National Assembly passed with additional amendments after the bill was already passed by Senate with amendments on October 21, 2022.
‘The Bill of 2022’ was transmitted to the Senate of Pakistan for consideration, Rabbani had said. The Senate passed the Criminal Laws (Amendment) Bill, 2022’ with amendments on October 20 and the bill was returned to the National Assembly for consideration, he added.
“The National Assembly of Pakistan in terms of Article 70 of the Constitution of Pakistan, 1973, read with rule 154 of ‘the Rules’, considered the ‘Bill, 2022’, as amended and passed by the Senate and in an unconventional move, passed the said the bill with further amendments,” Rabbani pointed out in his letter to the NA speaker.
Rabbani viewed that the bill could not be transmitted back to the Senate, as it is no longer a bill that has originated in the National Assembly in terms of Rule 120, of ‘the Rules’, and Article 70 of the Constitution. “The bill cannot be sent to a Joint Sitting of Parliament by the House in which it originated because the Member-in-Charge of the Bill chose to give notice and move a motion for consideration and passage of the Bill as passed by the Senate,” he added.
Senator Raza Rabbani had also said the National Assembly had made a ‘new amendment’ while passing the bill as amended by the Senate, giving rise to a situation not provided for in the Rules. Therefore, the Speaker, using his residuary powers, should rule that the government may move a motion to rescind or withdraw the motion for the passage of the Bill, 2022, as amended.
“The government may move a motion that the Bill 2022, as amended and passed by the Senate, be referred to the Joint Sitting of Parliament,” he suggested to the NA speaker in his letter.
Rabbani had urged the NA speaker to expedite the legislative process of the bill as it was the most significant legislation in the public interest which could go a long way in mending the issue of enforced disappearances.
‘Where is the 2022 Bill?’
In 2023, cases of missing persons rose. In August 12, 2023, PML-N Senator Irfan Siddiqui on the floor of the National Assembly (NA) asked Speaker Raja Pervaiz Ashraf to trace his missing bill which was sent to President Dr Arif Alvi for assent 14 months ago after being approved by both houses of Parliament.
Siddiqui said after becoming a member of the Senate, he had prepared the bill to amend the Criminal Code, to bring this century-old law in line with the Constitution.
During the PTI government, the Code of Criminal Procedure Amendment Act, 2022, was introduced in the Senate and received approval from the Senate’s standing committee on home affairs. On May 23, 2022, the Senate granted its approval, followed by the National Assembly on June 8 of the same year. Subsequently, on June 21, the bill was forwarded to the President’s Office for formal endorsement.
Senator Siddiqui disclosed that he had raised the issue in Parliament, but the bill could not be located.
In August 2022, the Presidency officially confirmed that it had not received such a bill. Senator Irfan Siddiqui penned a letter to the speaker, urging him to issue orders to locate the missing bill and to initiate an investigation to assign responsibility for its disappearance.
Response by the Senate Secretariat: ‘The Bill is not Lost’
Three years later, the issue of the “missing” bill resurfaced in the Supreme Court on January 2 during a hearing on enforced disappearances.
Chief Justice of Pakistan (CJP) Qazi Faez Isa expressed surprise at the bill’s vanishing act from the Senate, particularly noting that it transpired during the PTI’s term in power.
Consequently, the Senate is now obligated to revisit the approval of the bill in order to legitimise it as an act of parliament.
But the Senate Secretariat has disclaimed any responsibility, asserting that the bill was sent back to the National Assembly after being approved by the upper house of Parliament over a year ago.
A strange Situation
Imaan Mazari, human rights lawyer, spoke about the situation briefly with Voicepk.
“If the Bill did not go missing, [as the Senate secretariat says], why as per the Senate chairman’s own statement, was it placed before the Senate so belatedly?” she asks. “As per his statement it was sent to the Senate on November 10, 2021, after it was passed by the National Assembly two days ago. But the date according to him for it being tabled was July 29, 2022 – after the government changed.” she points out. “Apparently now, it has been sent back to the National Assembly again.”
Meanwhile, a senator on the human rights committee said that there could be different reasons as to why the bill never came to the senate as it is being said.
“The first assumption is that it was delayed by the National Assembly. If it got passed by the NA then it should have been transmitted to the Senate, he said while speaking on condition of anonymity. “Many bills which seem to belong with the Human Rights committee actually land somewhere else sometimes. This has happened with the Criminalization of Custodial Torture Bill. After that it was sent to the NA and was passed from there.”
Presently, in Pakistan there is no law which defines “enforced disappearance”.
How Cases are Lodged
In numerous instances, superior courts or the Commission of Inquiry on Enforced Disappearances (CIED) instructed the relevant police stations to file First Information Reports (FIRs), and these cases are primarily registered under section 365 of the Pakistan Penal Code (PPC), which pertains to kidnapping or abduction.
Initially in the Bill there was no provision related to the filing of a false complaint or false information about subjecting a person to enforced disappearance. Later a provision was added to the bill to declare it a penal offence punishable by up to five years imprisonment with a fine up to Rs500,000.
The proposed law has the insertion of a new section 52B in the PPC for defining an “enforced disappearance”.
“The term enforced disappearance relates to illegal and without lawful authority 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 places such a person outside the protection of the law.”
Meanwhile, Section 365 of the Pakistan Penal Code already criminalises unlawful abductions and deprivation of liberty.
There are some like senior PPP leader and former Senator, Farhatullah Babar who differ on this Bill saying it is more of a political statement as the Bill has nothing new to offer. Farhatullah Babar has also been calling for a new and comprehensive legal architecture to address the issue.
Bodies Dealing with Enforced Disappearances
The primary international legal framework addressing such actions is the International Convention for the Protection of All Persons from Enforced Disappearances, adopted by the UN General Assembly on December 20, 2006. This convention became effective on December 23, 2010. Nevertheless, Pakistan has neither signed nor ratified this agreement.
Other than this, two UN bodies — The Committee on Enforced Disappearances and the Working Group on Enforced or Involuntary Disappearances (WGEID) — monitor and collaborate where possible to assist states and people in tackling the issue of “enforced disappearances”.
The working group had undertaken a 10-day visit to Pakistan in Sept 2012 and had also put forward several recommendations in its report.
One of the important recommendations was: “A new and autonomous crime of enforced disappearance should be included in the Criminal Code, following the definition given in the 2006 Convention on the Protection of all Persons against Enforced Disappearances, and with all the legal consequences flowing from this qualification.”