An opinion piece by International Commission of Jurists’ (ICJ) legal adviser Reema Omer on Pakistan’s lack of willingness to address the serious crime of enforced disappearances.
On 26 February 2013, the United Nations Working Group on Enforced and Involuntary Disappearances (WGEID) published its report on Pakistan, following the WGEID’s visit to the country in September 2012.
The report expressed concern at the continuing practice of enforced disappearances in Pakistan and made a series of recommendations to the Government.
A year later, despite the growing scale of the practice, Pakistan is further than ever from meaningfully addressing the serious crime of enforced disappearances.
Many of the laws and policies adopted by the Government this past year have made a mockery of the Working Group’s report and Pakistan’s national and international human rights commitments.
A close look at the report, and particularly its recommendations, is essential, especially as Pakistan is in the process of drafting a law on enforced disappearances.
Enforced Disappearance is a serious crime under international law.
An enforced disappearance occurs when State agents or those acting with their authorization, support or acquiescence, abduct or detain a person and then refuse to recognize the detention or conceal the person’s fate or whereabouts, placing such a person outside the protection of the law.
The Working Group acknowledged that Pakistan was facing grave security challenges.
However, it pointed out that under international law and standards, including Article 7 of the Declaration on the Protection of All Persons from Enforced Disappearance and the International Covenant on Civil and Political Rights (ICCPR), enforced disappearances cannot be justified under any circumstances.
In this context, the WGEID was particularly concerned over the extensive powers given to security agencies under Pakistan’s anti-terror regime and recommended that Pakistan amend provisions of the Anti-terrorism Act 1997 and the Actions (in Aid of Civil Power) Regulations 2011, which appeared to facilitate the practice of enforced disappearances.
The Government ignored the WGEID’s recommendation and promulgated perhaps the most draconian anti-terrorism law the country has seen in the form of the Protection of Pakistan Ordinance, 2013 (PPO).
Section 9 of the PPO allows the Government to withhold information regarding the location of detainees, as well as their place and grounds of detention for any “reasonable cause”.
This provision is an affront to the rule of law.
It seeks to place detainees beyond the protection of the law, and denies them legal personality, which is absolutely prohibited under the ICCPR and general rule of law principles. Effectively, it seeks to legalize the practice of enforced disappearance.
The Working Group also emphasized that fighting impunity for perpetrators of human rights violations is essential and expressed concern that no State agent has been convicted in relation to acts of enforced disappearance.
The Supreme Court of Pakistan too reiterated the Working Group’s call to bring perpetrators of enforced disappearance to account.
Quite appallingly, following the Court’s judgment in the Muhabat Shah case delivered in December 2013, the Government filed for a review of the judgment, asking the Court to delete remarks implicating the security agencies in enforced disappearances as such findings could “demoralize the troops”.
The PPO also grants blanket immunity to all State agents for acts done in “good faith” in the performance of their duties.
It provides that any person detained by the armed forces before the coming into force of the Ordinance shall be deemed to have been detained pursuant to the Ordinance.
This retrospective immunity to the armed forces undermines the little progress made in the last few years by the superior courts of Pakistan to bring perpetrators of enforced disappearance to account and is likely to entrench the already pervasive impunity enjoyed by the security forces, particularly related to human rights violations.
Furthermore, the WGEID urged Pakistan to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (Convention on Enforced Disappearance).
Numerous States made this recommendation during Pakistan’s Universal Periodic Review in 2012 as well.
The Government has so far made no progress toward ratification.
Instead, it has sought to undermine an attempt made by the Supreme Court to apply the principles enshrined in the Convention.
In the Muhabat Shah case referred to above, the Supreme Court held that the principles of the Convention on Enforced Disappearances were applicable in Pakistan as the Convention was inextricably linked with the right to life, guaranteed by the Pakistan’s Constitution.
The right to life is also recognized by the ICCPR, which Pakistan ratified in 2010.
The Government, however, challenged the ruling, arguing that as Pakistan has not ratified the Convention, the Court could not hold it to be applicable in Pakistan.
The WGEID also recommended that the crime of enforced disappearance be included in the Criminal Code of Pakistan in line with the definition given in the Convention on Enforced Disappearances.
Despite hundreds, if not thousands, of people “missing” in Pakistan following apparent abduction by or with the complicity of the State, enforced disappearances are still not specifically criminalized in the country.
This is particularly deplorable as Pakistan accepted recommendation 122.20 made during its 2012 Universal Periodic Review, which called on the Government to criminalize enforced disappearances in the penal code.
One hopes that the proposed law on enforced disappearances -reported to be in its final stages- takes the Working Group’s recommendations more seriously.
Refusal to do so will be a damning indictment of Prime Minister Nawaz Sharif’s Government’s failure to meet its commitment to uphold Pakistan’s international human rights obligations.