Justice for Pakistan’s ‘disappeared’
An opinion piece by Reema Omer, Legal Adviser for the ICJ.
The Attorney General of Pakistan recently informed the Supreme Court that over 500 persons reported to be ‘missing’ were in the custody of security agencies.
This revelation comes after security agencies had for years denied involvement in cases of enforced disappearances in the country.
Three years ago, Pakistan ratified the International Covenant on Civil and Political Rights (ICCPR), undertaking to safeguard the right to life and liberty, including freedom from arbitrary detention, of its people.
Coupled with a newly restored independent Supreme Court committed to defend human rights, many Pakistanis hoped the ratification would help improve Pakistan’s grave human rights situation.
But the expected improvements have not taken place – in fact, in some cases, the human rights situation has deteriorated. This remains true especially for enforced disappearances, which continue with complete impunity.
Time to take the necessary steps
It is now time for the Supreme Court to take the necessary steps to hold those state agencies (and agents) accountable that have subjected hundreds, if not thousands, of Pakistanis to enforced disappearance.
Under international law, enforced disappearance is the arrest, detention, abduction or any other form of deprivation of liberty by State agents or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a ‘refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.’
The UN General Assembly has repeatedly described enforced disappearance as ‘an offence to human dignity’ and a grave and flagrant violation of human rights and international law.’
Pakistan’s Supreme Court first assumed jurisdiction of enforced disappearances in December 2005 by taking suo motu notice of a news report. Chief Justice Chaudhry acknowledged evidence that many of the ‘disappeared’ were being held in security agencies’ custody and committed to ‘deliberate on the role of agencies and pass a detailed judgment’ at a later stage.
Seven years later, and following many more remarks on the culpability of security agencies, there are still no judgments, prosecutions, or convictions related to the multiple ‘missing persons’ petitions pending in the Supreme Court.
When questioned about the fate of ‘disappeared’ persons, security agencies either deny knowledge, or in blatant defiance of Court orders, resist releasing those found to be in their custody. A primary tool to facilitate enforced disappearance is the Actions (in Aid of Civil Powers) Regulations 2011 (FATA/PATA Regulations), a law that empowers the military to detain suspected militants indefinitely without presenting them before a court.
Suspects are often kept incommunicado, and denied access to family, legal counsel, and human rights groups.
The Supreme Court’s efforts to assume jurisdiction of human rights violations and trace ‘disappeared’ persons are commendable first steps towards combating impunity for enforced disappearances.
Pakistan’s obligations not met
However, these steps alone do not meet Pakistan’s human rights obligations under international law.
Under International law, States are obligated to prevent human rights violations, and undertake prompt, thorough, independent and impartial investigations where violations take place.
The United Nations Impunity Principles specifically require States to ensure ‘that those responsible for serious crimes under international law are prosecuted, tried and duly punished.’ Obligations under international law are binding on all branches of the State – including the judiciary.
Multiple factors allow impunity for enforced disappearances to continue such as a compromised criminal justice system, inadequate witness protection laws, and the absence of civilian oversight of the military.
The executive authorities must discharge their responsibility to conduct prompt, thorough and impartial investigations into allegations of enforced disappearance, with a view both to determining the fate and whereabouts of ‘missing persons’ and prosecuting those responsible.
The Supreme court can play a more effective role
Pakistan’s independent and assertive Supreme Court has done well to trace ‘missing persons’ and seek a comprehensive strategy on enforced disappearances from the Government.
However, it can play a more effective role in ensuring that ‘disappeared’ persons are either released or, if charged with a recognizable crime, receive a fair trial before an independent and impartial civilian court.
They can also ensure perpetrators for enforced disappearances are brought to account and that victims or their families are able to access a remedy and reparation for the human rights violations they have suffered.
First, the Supreme Court could invalidate sections of the FATA/PATA Regulations that are incompatible with Pakistan’s obligations under national and international human rights law.
Recently, the Court declared the Contempt of Court Act 2012, a law that sought to curtail the judiciary’s contempt powers, void in less than two months after it was passed by Parliament.
However, petitions challenging laws decried by human rights organizations for facilitating enforced disappearances have been pending in the Supreme Court for years with little progress.
Second, the Court could direct and supervise criminal investigations, as well as order institution of criminal proceedings against members of security agencies implicated in enforced disappearances.
The Supreme Court has frequently exercised this authority in corruption cases, but has so far not invoked this power effectively to address enforced disappearances and other violations carried out by agencies of the armed forces.
Third, the Supreme Court could use the wide range of contempt powers at its disposal to compel authorities to implement its orders.
In recent years, the Court has used these powers frequently against journalists, lawyers, and even former Prime Minister Gillani, resulting in his disqualification from office. Security agencies, however, have so far escaped such action despite their failure to follow directions of the Court in cases of enforced disappearances.
Source of hope
At a time when public trust in other State institutions is low, the Supreme Court still remains a source of hope for justice for the thousands of ‘disappeared’ persons and their families.
The Court has recognized the seriousness of the situation. However, it would do well to move beyond merely tracing ‘disappeared’ persons to recovering them and holding perpetrators accountable.
This will bring Pakistan closer to meeting its obligations under international law and be instrumental in combating impunity enjoyed by the security forces for their role in perpetrating human rights violations.