Involuntary disappearances in Pakistan
INVOLUNTARY or Enforced Disappearances have long been a taint on the human rights record of Pakistan.
To-date involuntary disappearances are an alarmingly widespread and ongoing issue and are being committed with impunity in Pakistan and many parts of the world.
Impunity means the impossibility of holding perpetrators of enforced disappearances accountable.
Families of the involuntary disappeared victims suffer a great mental agony when their loved ones disappear and make desperate attempts to find them.
The groups and individuals targeted in involuntary disappearances in Pakistan include people from Sindhi, Baloch, Pashtun ethnicities, the Shia community, political activists, human rights defenders, members and supporters of religious and nationalist groups, suspected members of armed groups, and proscribed religious and political organisations in Pakistan.
Since 2001 till to date, thousands of cases of involuntary disappearances have been reported from all parts of Pakistan and the significant proportion of such cases is still un-reported.
In recent years, there have also been a number of ‘short-term involuntary disappearances’, where the victims include bloggers, activists and others who were seen to be critical of the state.
After interrogation and torture in secret detention for weeks or months, they were released without being charged for any offence.
In March 2011, Pakistan’s Federal Government constituted a Commission of Inquiry on Enforced Disappearances (COIED) under the Commissions of Inquiry Act, 1956.
The Commission’s mandate was among other things to trace the whereabouts of allegedly enforced disappeared persons, fix responsibility on those responsible and to direct the registration of FIRs against those who were involved in the disappearance of a person.
According to the Commission’s latest progress report for the month of November 2021, the Commission received 8,279 cases of alleged enforced disappearances from across the country between March 2011 and November 2021.
It ‘disposed of’ 6,047 cases, including 123 cases during November 2021.2,232 cases are still pending with the Commission for disposal.
In September 2020, The International Commission of Jurists (ICJ) released a briefing paper about the assessment of the performance of the COIED since its formation.
The ICJ’s findings inter alia were that, the legal framework setting out the appointment and functioning of the COIED do not meet international standards for an effective investigation, arrest and prosecution as set out in International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).
In the ten years tenure of COIED, it has never directed for the registration of FIRs against those responsible for concealing the whereabouts of the disappeared people who were eventually traced in detention centres.
Despite the poor performance of Commission and the ICJ’s recommendation that not to extend its mandate, the government of Pakistan has again extended its mandate for a further three-year period up to 14 September 2023.
The ICPPED is an international human rights instrument of the United Nations.It entered into force on 23 December 2010.
The Convention provides a definition of the offence of enforced disappearance and outlines necessary state actions for its prevention and to allow states for the investigation and prosecution of those who perpetrate it.
To date, Pakistan has neither signed nor ratified this convention and Pakistan’s criminal laws also do not currently recognize enforced disappearance as a distinct offence.
In many cases, the concerned police stations were directed to register FIRs by the superior courts or by the COIED and they had registered cases mostly under Section 365 of the PPC dealing with kidnapping or abduction.
In last few years, several bills to criminalize the enforced disappearances in Pakistan have been presented in Parliament but were lapsed due to non-interest of the government.
But in June 2021, the struggle of civil society and victim families was upheld when the ruling party through Ministry of Interior introduced a bill ‘The Criminal Laws (Amendment) Bill, 2021 on enforced disappearances’ in the National Assembly.
The object of this govt.bill is to criminalize the heinous crime of enforced disappearance and impunity.
A clause 514 is added in the bill, which says “A false claim or no proof of enforced disappearance can lead up to 5 years of imprisonment and 1 lac fine”.
On 9 November 2021, the bill was passed by National Assembly and forwarded it to Senate for approval.
The bill is an important step towards criminalizing enforced disappearances in Pakistan, but the above clause in the bill is unacceptable to the victims and their families, human rights defenders and other national and international bodies working against enforced disappearances.
The victim families of enforced disappearances are already aggrieved and are struggling to find their disappeared loved-ones for years.
The clause 514 will further create a sense of fear and reprimand among the victims and reporting victim families and they would hesitate to file complaints against it.
So, the law should have been enacted according to the aspirations of the victims of enforced disappearances and their families.
Another shortcoming in the bill is that the bill is not an exclusive piece of legislation on enforced disappearances rather it proposes amendments in the Pakistan Penal Code, 1860 and the Code of Criminal Procedure 1898.
The name of the bill should be ‘Enforced Disappearances Act’ which describes a complete procedure of arrest, investigation and prosecution of cases of enforced disappearances, assign appropriate responsibilities to relevant government authorities and make them accountable for mishandling the cases of enforced disappearances and prescribe appropriate punishment for abettors, facilitators and perpetrators of such crimes.
—The writer is Advocate High Court/Human Rights Lawyer Based in Islamabad.