On the issue of enforced disappearances or missing persons, a kind of media civil war is going on, with the human rights lobby and liberals pitted against the military elite and its intelligence agencies. The human rights lobby and liberals accuse the intelligence agencies of engaging in the immoral, illegal and unconstitutional practice of enforced disappearances with ill intention and impunity. For their part, the military elite and its intelligence agencies accuse the human rights lobby and liberals of, at best, not understanding the necessity of this practice to safeguard national security and, at worst, of acting on a foreign agenda. The two groups question each other’s intentions and neither is willing to accept that both may actually be right in part.

What if the military and intelligence elites are right that detention without trial for a reasonably longer time period is essential in the fight against militancy and foreign espionage and that such detention is not possible within the current legal framework? And, what if the disclosure of the truth by the intelligence agencies about missing persons is not possible without legal and constitutional immunity? On the other hand, what if the human rights lobby is also right that enforced disappearances is a destructive practice, not only for a modern constitutional state but also for the national and international reputation and morale of the military elite and intelligence agencies?

Can these opposite positions be reconciled?

Hypocrisy vs denial: With the exception of the principled position taken against all enforced disappearances by the Human Rights Commission of Pakistan, there is a general hypocrisy pervading liberal sections of Pakistani society on this issue. How many liberals have condemned or protested or written about the enforced disappearances of Islamic militants and their sympathisers by the same intelligence agencies? Are they willing to recognise that the overall majority of the disappeared are Islamist militants and their sympathisers and not Baloch activists or liberal bloggers?

What if the military and intelligence agencies are right about detention without trial?

How many liberals are willing to accept that the allegations of Baloch activists that there are 12,000 to 14,000 Baloch missing persons is political propaganda because according to the Commission of Inquiry on Enforced Disappearances (as on December 2015) a total of 3,012 cases were filed, out of which 1,449 have been traced, and even out of 1,390 pending cases, only 125 relate to Balochistan? Even if these figures about Balochistan are underestimated, there is no data showing that the number of Baloch enforced disappearances is more than a couple of hundred. Such hypocrisy is an obstacle to recognising that actually there is societal consensus, among liberals and Islamists, to end all enforced disappearances.

As for the intelligence agencies, can they deny that they have engaged in enforced disappearances in view of the following facts? Firstly, two official Commissions of Inquiry on Enforced Disappearances, in which both the ISI and MI participated, recognised enforced disappearances. Secondly, the report of a Federal Task Force on Missing Persons, of which both agencies were a part, also recognised enforced disappearances. Thirdly, the Supreme Court judgements in the ‘Muhabat Shah’ case and ‘Law and Order Case on Balochistan’ recognised enforced disappearances. Fourthly, an official ISI statement, attached as Appendix I to the book The ISI of Pakistan by Hein G. Kiessling, recognises the practice of enforced disappearances and details efforts made to solve it. Therefore, denial of enforced disappearances by the security apparatus in 2017 is like living in an alternative Trumpian world of invented but fictional ‘facts’.

Ambiguity leads to impunity: Whether it is the operations in the tribal areas or in Karachi or elsewhere, is it not an open secret that one of the key anti-militant strategies adopted by the intelligence agencies is enforced disappearances? There is universal praise by the liberals for Operation Zarb-i-Azb even though it is well documented that this ‘war on terror’ has also involved large-scale unjustified arrests, torture, enforced disappearances and extra-judicial killings. It is this ambiguity of response in not condemning the enforced disappearances of Islamic militants or lukewarm condemnations of the enforced disappearances of MQM militants that both confuses, and provides justification, leading to the rigid approach of the intelligences agencies to continue these practices with impunity.

Towards a compromise: Does our political elite or the parliamentarians know that there are consensus recommendations (ie consented to by both the civilian and military establishment) of the Federal Task Force on Missing Persons gathering dust in the interior ministry? And that there is a draft law on enforced disappearances lying with Nacta based on these consensus recommendations?

The solutions proposed are controversial but realistic. Firstly, we need to rethink the current detention framework under Article 10 of the Constitution; we need more flexible detention laws allowing long-term detention of suspects without trial. Yes, this is not ideal but this will radically diminish illegal detentions/enforced disappearances, torture and at times, extrajudicial killings as a consequence of such enforced disappearances. Without such flexible detention laws, intelligence agencies will not end enforced disappearances.

Secondly, once flexible detentions laws are in force, criminal prosecutions should immediately follow any future cases of enforced disappearances.

Thirdly, there should be legal immunity for intelligence agency officials and other state officials for making full disclosures about missing persons, especially people missing for many years. Moreover, compensation should be paid to the victims of enforced disappearances.

Fourthly, an independent tribunal is needed for deciding enforced disappearances cases with powers to take action against any state official engaged in the practice and with power to award compensation to the victims.

The issue of enforced disappearances is a difficult moral and political one, and we should have the courage to recognise that there are no choices between good and bad solutions in such difficult issues. Rather, the choices are between bad and worse solutions. Therefore, we must make these tough choices.

The writer is a lawyer.

Published in Dawn February 6th, 2017