Too little, too late
PRIME Minister Imran Khan has recently approved the addition of enforced disappearance as an offence within the Pakistan Penal Code to counter this ever-growing perverse human rights abuse. And while the identification of this phenomenon as an offence will definitely reduce the trouble the families of the victims have to go through to register an FIR in a police station, it still leaves much to be desired.
The act of enforced disappearance has always been a crime in Pakistan. The Pakistan Penal Code defines abduction as any forceful or induced movement of a person, and Section 365 specifies a seven-year imprisonment for those who kidnap or abduct with intent to secretly and wrongfully confine a person. The enforced disappearances of citizens of Pakistan, even if by members of military and intelligence agencies, have thus always fallen within the vires of this offence.
Furthermore, in 2013, the Supreme Court in a human rights case (reported as PLD 2014 SC 305) dealt with the issue of enforced disappearances and following the footsteps of the supreme court of Nepal, adopted and applied the principles of the International Convention for the Protection of All Persons from Enforced Disappearance and declared and held it to be a crime against humanity.
The act of enforced disappearance has always been a crime in Pakistan.
Thus, adding the words ‘enforced disappearance’ to the Pakistan Penal Code would be an exercise in futility if that is all the state is willing to do. To effectively counter the practice of enforced disappearances in Pakistan, the state first needs to understand that simple additions within the body of criminal law will not be helpful without the effective investigation and prosecution of perpetrators of this grave act.
The Commission of Inquiry on Enforced Disappearances notified by the federal government under the Commissions of Inquiry Act, 1956, has registered over 5,000 cases of enforced disappearances since March 2011. There are no recent statistics for the number of writ petitions filed in the high courts on this issue, but in 2013 alone there were at least 700 pending cases.
However, till today no state functionary has been prosecuted and no victim of enforced disappearance recovered through police action. This is because our ordinary police officers are neither trained nor independent enough to investigate abductions conducted by covert military and intelligence agencies.
This fact has been made all the more apparent in the Mahira Sajid case reported as 2018 CLC 1858. As per the petitioner counsel advocate Umer Ijaz Gilani: “Enforced Disappearance is, and has always been, a crime under Pakistani law.” He further goes on to state that it is well known that intelligence agencies have abduction squads who pick up people every day and run a vast network of illegal detention centres. “But so far no police officer has had the courage to identify and prosecute the culprits. I fail to see how a simple amendment in the PPC will change the situation.”
Thus, the creation of a specialised investigation and prosecution agency for enforced disappearances is the need of the hour. Above all else, this agency should be completely independent from existing governmental structures so that it cannot be browbeaten into submission by the shadowy members of deep state. Secondly, it should be a high-powered agency that can call for information from any military or intelligence agency or outfit in Pakistan, and arrest its members or search their premises.
The second legal remedy required to provide justice to those affected by enforced disappearances in Pakistan would be a compensatory regime for the victims and, most importantly, their dependent family members. Amina Janjua, founder of the Defence of Human Rights Pakistan, an organisation working on the issue of enforced disappearances since 2004, has been witness to the financial difficulties the families of victims face after the covert abduction of their loved ones. “No amount can truly compensate the victim family after the horrifying experience of a disappearance but families of the disappeared should be given subsistence allowance from the day of disappearance of their loved one, moreover the traced loved should be rehabilitated completely and compensated with a huge amount sufficient for his whole lifetime.”
Until such time that the federal government recognises the need to establish a specialised and empowered investigative agency that can investigate and prosecute those who are involved in the commission of this act and a compensatory regime which can provide some form of financial net for the dependents of the thousands of victims of this heinous offence, the ‘disappeared’ shall remain disappeared — and their families left alone in the cold, holding a placard and holding on to the fleeting hope that, one day, their loved one will come home.
The writer is a human rights lawyer working at the Law and Policy Chambers in Islamabad.
Published in Dawn, February 4th , 2019