WHY does the practice of enforced disappearances, generally referred to as ‘missing persons’, continue to persist in Pakistan, eg the recent disappearances in Sindh? Is it because there are doubts about the unconstitutionality of such practice? Is it because there are doubts about which mysterious or hidden forces engage in it? Is it because the practice is an essential tool for preserving national security? Is it because it is an extremely difficult problem to solve and there are no implementable solutions?

Unjustified doubts: The various doubts created regarding the phenomenon of missing persons are not grounded in legality, reality, institutional requirements or practical solutions.

Firstly, there is absolutely no constitutional or legal doubt about the complete unconstitutionality of the practice of enforced disappearances. The fundamental right enshrined in Article 9 of the Constitution guarantees that no person can be deprived of his liberty or freedom without due process of law. Article 10 further guarantees that every person who is detained shall be produced before a magistrate within 24 hours of such detention, and also provides an elaborate procedure for detention without trial of persons acting in a manner prejudicial to Pakistan’s security. In the presence of such constitutional protection, any state organ engaging in the practice of enforced disappearance is, quite simply, guilty of kidnapping and abduction.

Secondly, there is not some but overwhelming evidence of the involvement of state officials, including intelligence agencies, in cases of enforced disappearance as the findings of the following show: government commissions of inquiry on enforced disappearances, the Supreme Court judgement in the Muhabat Shah case (2013) which declared such enforced disappearances as “crimes against humanity”, the detailed documentation of enforced disappearances in Balochistan by the Supreme Court in Constitution Petition No.77 of 2010 and even an official ISI statement attached as Appendix I to the book The ISI of Pakistan by Hein G. Kiessling, recognising this practice and detailing efforts made to solve it. Thus, there are no hidden or mysterious forces involved in this practice of enforced disappearances.

How can the anti-militancy fight to establish constitutional supremacy coexist with the denial of rights?

Thirdly, the practice of enforced disappearances is not a strategic requirement for intelligence agencies to protect national security but merely a tactical tool adopted in the post-2003 and post-2004 period because enforced disappearances on a large scale only began during the Musharraf dictatorship. It was an accidental product of the intelligence agencies collaborating with the American imperial power in the ‘war on terror’. Before 2003, national security was protected by the intelligence agencies even without this tactical tool.

Fourthly, between 2009 and 2013, the practice of enforced disappearances was radically curtailed by aggressive judicial interventions especially by the Supreme Court and efforts by the Pakistani state to try and solve this problem. This grand opportunity slipped away at the end of 2013. Thus, the solutions are known and can be practically implemented.

Reasons for persistence: Firstly, although the practice of large-scale enforced disappearances was a tactical tool adopted by the intelligence agencies and other state officials in the post-2003 period, it now also serves the purpose of maintaining the immunity and the public’s fear of the intelligence agencies. More than even extra-judicial killings, the fear that anyone can go missing at anytime has terrorising psychological and physical implications. It symbolises the unconstitutional immunity of the state and the fear that it generates ie it is a terrorising instrument of control.

Secondly, the intelligence agencies believe that the new kind of militancy persisting in Pakistan cannot be controlled without detention laws, which are both flexible and allow for long-term detention without trial. By not using the detention procedure under Article 10, they have shown their mind about the impracticality of such procedure. No doubt, flexible long-term detention laws are potentially dangerous but they might be a hard necessity in order to eliminate the unconstitutional evil of enforced disappearances.

Thirdly, in a revealing statement, the ISPR stated that the “COAS directed that efforts must continue, in concert with other elements of national power to defeat terrorism/militancy in order to establish rule of law and uphold supremacy of Constitution”. But how can the fight to defeat militancy to establish constitutional supremacy coexist with the denial of the fundamental constitutional right to liberty? This captures the culture of selective constitutionality still prevalent in the armed forces and the public discourse especially in the media. Sadly, the unconstitutional evil of denying people their liberty is never given the same urgency, attention and implementation as the unconstitutional evil of political corruption.

Fourthly, even during 2009-2013, when aggressive judicial intervention against enforced disappearances was at its height, there was not a single successful prosecution of any intelligence official involved in the practice. This shows that the courts have gone to great lengths to show judicial restraint and after 2013, this restraint has been converted into judicial quietism in such matters. It is interesting to compare such judicial restraint with the recent decision of the Supreme Court to disqualify prime minister Nawaz Sharif on the basis of a very literal reading of the law. Thus, this prevalent judicial quietism on enforced disappearances reinforces the culture of impunity that allows intelligence agencies to continue with such practices.

Confronting unconstitutional evil: Such a confrontation has to be three-pronged. This would involve: firstly, reviving active judicial intervention against enforced disappearances without showing judicial restraint against officials committing such acts. If a JIT can investigate the prime minister then surely officials engaging in such practices should also be prosecuted with the same rigour. Secondly, legislative action is needed to enact a comprehensive law against enforced disappearances including provisions to prosecute intelligence officials, and also enact new flexible detention laws. Thirdly, there’s an urgent need for debate within the army leadership on whether their valiant efforts against religiously inspired militancy and the MQM’s militancy and their desire to bring order to Balochistan are being sabotaged by the toxic tactical tool called ‘enforced disappearances’.

Will the missing persons phenomenon end? Only if the silent majority and the judiciary break their quietism on this issue making the ruling elites realise the strategic folly in employing this tool.

The writer is a lawyer.

Published in Dawn, August 28th, 2017