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Cases of Enforced Disappearances in Pakistan

BY JUSTICE (R) RASHEED A. RAZVI
Pakistan Bar Council

Since Pakistan has become one of the allies on ‘War on Terrorism’ after the year 2001, it is now more vulnerable to terrorism and particularly in pursuit to counter terrorism. In recent past, Pakistan has witnessed several cases of enforced disappearances. We have also witnessed the apathy of the Executive and Superior Courts in extending relief in the cases of missing persons. To plead the case of missing persons, it is not part of any political agenda but a case of infringement of Fundamental Rights and not that of the missing persons but the right to life of his entire family members. This situation is getting worst day by day in this part of the World. How to meet this situation and how to get relief through legal process? My endeavor would be to deal with this subject and its impact on the rule of law.

The cases of enforced disappearances or missing persons are common in this part of the world particularly in those countries where the ruler of the country is an absolute dictator. For quite some time, Pakistan has been facing this problem and the list of missing persons or enforced disappearances are growing day by day. Recently, in its report the Human Rights Commission has filed a petition before the Supreme Court (March 2007) wherein it is alleged that nearly 150 persons are missing. According to the UN’s General Assembly Resolution dated 18-12-1992 on Declaration on the Protection of All Persons from Enforced Disappearance, such disappearance occurs:

“……… In the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the government, followed by a refusal to discuss fate or whereabouts of the persons concerned or a refusal to acknowledge deprivation of their liberty, which places such persons outside the protection of law………”.

It is pertinent to mention here that in May 2006, Pakistan was elected to the newly established UN Human Rights Council, which, in June of the same year, unanimously adopted the draft International Convention for the Protection of All Persons from Enforced Disappearances. The draft Convention bans enforced disappearances and declares widespread or systematic practice of enforced disappearances a crime against humanity. Unfortunately, this U.N. Conventions have not been incorporated into statutory laws of Pakistan nor, to the best of my knowledge, any Court has adopted its principles while dealing with writs of habeas corpus.

Counter-terrorism operations have become en vogue for last two decades in Pakistan and continue to be accompanied by serious violations of human rights. Suspects held on terrorism charges frequently are detained without charge or some time they are tried without proper judicial process. In Pakistan the Investigating Agency has the same old and conventional method of investigating into crime. Their main focus is on how to obtain confession of the person under custody as it shortcut the process of enquiry. And for the purpose of obtaining confession of an accused or to extract statement of witnesses, the Law Enforcement Agency did not hesitate to adopt third degree method of torture and harassment. Human Rights Watch has documented scores of illegal detentions, instances of torture, and “disappearances” in Pakistan’s major cities. Counter terrorism laws also continue to be misused to perpetuate vendettas and as an instrument of political coercion. It is impossible to ascertain numbers of people “disappeared” in counter terrorism operations particularly since 2007 because of the secrecy surrounding such operations and the likelihood that the families of some of the “disappeared” do not publicize their cases for fear of retaliation.

Pakistani authorities have presented figures suggesting that more than 1,000 alleged terrorist have been arrested by since 2001 by its Law Enforcing Agencies. The Pakistani government has processed only a fraction of the cases through the prevailing legal system. According to a reasonable estimate, hundreds of suspects have been handed over to the United States, often for sizeable bounties; many have ended up at Guantanamo. These acts of wrongful extradition were done in violation of the Extradition Act, 1972. This law provides detailed procedure for extradition of suspect including holding of an enquiry by a Judicial Magistrate. During such proceedings, the detenue is extended full rights of a fair trial and it is after satisfaction of the Judicial Magistrate that suspect is allowed extradition. Among the "high-value" terrorism suspects whom Pakistan is believed to have handed over to the United States is Syrian-Spanish citizen Mustafa Setmariam Nasar, who was reportedly arrested in late October or early November 2005 in Quetta, Pakistan.

In Pakistan, the role of intelligence agencies, civil and military, which includes Intelligence Bureau (IB), Federal Investigation Agency (FIA) and Inter Service Intelligence (ISI) is more significant, not only in the field of enforcing law and order in the country but such agencies are also found politically involved which may be one of the cause of enforced disappearance of several persons. It is being pleaded on behalf of these agencies that their efforts are to counter terrorism and since it is difficult for them to obtain evidence or any incriminating material against such terrorist which procedure is cumbersome (as claimed by them) and time consuming, therefore, in order to avoid writ of the High Court such method is evolved. Be that as it may, whatever the circumstances may be, there is no justification for making persons disappeared for an indefinite period. This may be termed to be an act of state terrorism and at the same time violation of the “right to life” of the family members of such disappeared/ missing persons as guaranteed vide Article 4&9 of the Constitution, 1973. Pakistani law requires arrests to be carried out, in most cases, by police presenting a valid arrest warrant; most of the terror suspects were not arrested in this way. Few were charged with a recognizable criminal offence. In most cases, no official record of detention was kept. They were not given access to a lawyer or to their family. They were not brought promptly before a magistrate.

The cases of missing persons in Pakistan generally occur in respect of those activists who are either involved with religious groups or political opponents. In the province of Sindh and Balouchistan, it also occurs to curb Pro Balouchistan Movement. It is very unfortunate that when a person re-emerges from disappearance he never testifies about the episode he had encountered during the days of enforced disappearance and about the person or agency involved. Although there were several cases of disappearances in Karachi after 2001, the cases brought before the Courts of Law are limited in number. Recently, there are nearly 15 to 18 habeas corpus petitions pending before the Sindh High Court at its principal seat. In all these petitions, except three, it is alleged that the detainees were arrested in the nights from their residences. It is also found that such raiding party had some police vehicles and personal with them. In other three petitions, the detenues reached Karachi from Dubai and after immigration process were found missing. These are Mr. Munir Ahmad Mengal, Dr. Syed Ali Raza and Mumtaz Hussain. The first case relates to the owner of a T.V. Channel “Balouch Voice”, while the other two allegedly belongs to a sectarian group.

A few detainees, some held for prolonged periods, have simply been released without charge, reportedly after being warned to keep quiet about their experience. Others have been charged with criminal offences unrelated to terrorism. Many have been unlawfully transferred to other countries, without any legal procedures, and in violation of the principle of non-refoulement, which prohibits people being sent to countries where they are at risk of serious human rights violations. Hundreds have been transferred to US custody and ended up in Guantánamo Bay, Bagram Airbase or secret detention centres elsewhere. However, many detainees remain unaccounted for-their fate and whereabouts are unknown.

The UN Declaration on the protection of all persons from enforced disappearance termed such offence contrary to the human dignity and also violates/constitute grave threat to the right to life. Article 3 of the said U.N. Declaration provides that each state shall take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in their respective jurisdiction. However, we are unable to find any such measures on the part of present regime. In the present scenario whatever efforts have been done in order to find or locate the disappeared/missing persons it was either on the part of the family members with the help of media and to some extent with the intervention of the Superior Courts. Here, I would like to state that our Courts are slow in seeking recovery of such persons while exercising their jurisdiction under Article 199 of the Constitution, 1973.

Under international law, torture and other ill treatment are prohibited absolutely and under all circumstances, without exception. They are morally abhorrent and in addition to the pain inflicted on the victim, demean the perpetrator. They are not only unlawful but also, ultimately, counterproductive. Confessions extracted under torture have often proved unreliable, as detainees may "confess" to anything to end their suffering. International law as well as Criminal Procedure Code of Pakistan, 1898 prohibits the use of statements obtained through torture or ill treatment in any proceedings, thus forcibly extracted "confessions" cannot in a fair trial contribute to criminal convictions of terror suspects. There are several judicial precedents laid down by the Superior Courts in Pakistan, where convictions based on such confessions were set- aside by the Courts but still this practice is in vogue, within the Law Enforcement Agency.

The right to habeas corpus, which is the right to be invoked before a High Court under Article 199 of the Constitution to be able to challenge the legality or otherwise of one’s detention, has been systematically undermined by the state agents who refused to comply with Court directions to provide information about the whereabouts of detainees or have denied any knowledge in Court. And upon such denial, the High Courts are found willing to dismiss a cause on the ground that it has become “infructuous”. It is mainly for such reason, that many detainees have been unlawfully transferred to the custody of other countries, notably the USA. In the cases pending before the Sindh High Court at Karachi, the Secretary, Ministry of Interior, Federal Government has filed his personal affidavits denying the whereabouts of the detenues. In a very strange manner he denied to have any control over the non-civilian agencies. This statement was clearly in violation of Article 243 of the Constitution, which provide that “the Federal Government shall have control and command of the Armed Forces”. (Emphasis added).

How the scope of Article 199 of the Constitution 1973, particularly in the cases of writs of habeas corpus has been narrowed down by the recent decisions of the Superior Court, is reflected in one of the case of Javed Ibrahim Paracha. The said petitioner was a former member of National Assembly from Kohat District, NWFP who filed a Constitution Petition under Article 199 of the Constitution challenging illegal arrest and detention of some 57 foreigners mainly from Arab countries and 145 Pakistani citizens mainly from tribal areas. This writ petition was dismissed by Peshawar High Court mainly on the grounds, inter alia, that the petitioner was not an aggrieved party. Strangely, the Supreme Court of Pakistan also adopted the same view and dismissed the appeal against the decision of the Peshawar High Court, inter alia, on the grounds that the petitioner was not an aggrieved party and that such petition does not amount to a public interest litigation. (PLD 2004 SC 482). This decision was given contrary to the settled law in respect of “aggrieved person” in the matters of writ of habeas corpus and ignoring the rule laid down by the Supreme Court of Pakistan in the case of Begum Nusrat Bhutto (PLD 1977 SC 657). In the said report a bench of Supreme Court consisting of nine (9) Judges held that “………it is true that in the case before us the petitioner is not alleging any contravention of her own Fundamental Rights, but she has moved the present petition in two capacities, namely, as wife of one of the detenues and as Acting Chairman of the Pakistan Peoples Party, to which all the detenues belong. In the circumstances, it is difficult to agree with Mr. Brohi that Begum Nusrat Bhutto is not an aggrieved person within the meaning of Article, 199……….”. (Please see page 675 of the report) Reliance was placed on the case of Manzoor Illahi (PLD 1975 SC-66). The petitioner, Javed Paracha, was not acting as “probono publico” but was acting as a friend of the detenues, which was sufficient compliance of the term “any person” as used in the Article 199 of the Constitution of Pakistan.

I may refer here some of the observations of the Sindh High Court, while dealing with the cases of missing persons. On 07-6-2006, it was observed by a Division Bench of the Sindh High Court that “……..whenever any citizen is found missing it is not sufficient for the persons responsible in the Federation and Provincial Government to merely file statement/affidavits that the missing person has not been arrested or detained. They are bound under the law to search and locate such person and produce him before this Court (High Court) so that in case of incorrect and false petition presented in this Court, the petitioner be dealt with by passing an appropriate order and in case some agency/officer has acted in violation of law, he may also be dealt with in accordance with the law. The Home Secretary, cannot be absolved of his responsibilities merely by stating that the missing person is not under arrest or detention……….” (Please see C.P.No.D-1088 of 2006). Again, on 06-12-2006, another Division Bench of Sindh High Court, made observations to the following extent.

“………Evidently, when the Constitution guarantees the protection of fundamental rights of life and liberty of every citizen it is not sufficient for a state functionaries merely to state that a citizen is in their custody. Indeed, the Provincial Police is prima facie responsible to ensure that no citizen is deprived of life or liberty except in accordance with law. Even if the detenues have been abducted or taken away by private individuals it was the duty of the police to arrest the culprits and to secure the life and liberty of detenue………”.

(Please see C.P.no.D-505 of 2006).

Such methods of torturing alleged terrorist in order to obtain confession or other information or the act of enforced disappearance have proved that by such method the terrorist activities were not successfully countered. These brutal acts on the part of Law Enforcing Agencies have multiplied the acts of terrorism. Here, I would like to quote my earlier view when in similar circumstances, following observations were made to suggest some ways and means to combat terrorism:-

“……….Before suggesting ways and means to counter-terrorism in Pakistan without violating human rights, in my view it would be advantageous if the causes leading to the commission of terrorism and sabotage are examined. It is one of the tragic aspect of this country that despite passing of more than 50 years, no efforts were made by any Government, in the past, to form any commission or any forum in order to investigative into the causes and to suggest ways and means for suppressing terrorist activities. There is no authenticated figure of terrorist acts, or arrest and trails of such terrorists. One has to rely upon the figures as they appear in newspapers which are bases on purely political assessments and which should not be relied upon……….”

“………On the contrary, a person simply accused of a terrorist act facing trail before these Special Courts or Speedy Courts was kept behind the bars for indefinite period without trail. These repressive laws failed to counter-terrorism. We cannot stop violence by setting up a counter-violence. Two wrongs do no make a right. Fundamental Rights as guaranteed under the Constitution as well as the Human Rights and in the Covenant of Civil and Political Rights have become inalienable rights of all the citizens without which there is no civilized society……” (Please see PLD 1999 Journal 144)

In order to conclude, I may be allowed to say that little has been done by the Federal and Provincial Governments since 2001, to adopt some positive methods to counter terrorism despite the fact that the acts of terrorism has gained momentum during the said period. On the contrary, the Law Enforcement Agencies have adopted all un-lawful methods and such other steps which are contrary to the Fundamental Rights as guaranteed under the Constitution of Pakistan or under different United Nations Declaration to deal with the cases of terrorism. Their efficiency could be gauged from the statement of the Advocate General Punjab before a Full Bench of Lahore High Court, as reported in the leading newspapers of this country on 03rd March, 2007, that there are more than 5000 absconders in the Province of Punjab. No figure is available of absconders in the remaining three provinces. These absconders are mainly involved in the cases arising out of terrorism. Millions of rupees have been fixed as head money for some of these sectarian terrorism.