MISSING PERSONS: A CONTINUING PROBLEM IN PAKISTAN

 “Ours is the century of enforced travel of disappearances. The century of people helplessly seeing others, who were close to them, disappear over the horizon” – John Berger

John Berger’s words resonate with the recent turmoil over the disappearance of Salman Haider and other human rights activist in Pakistan.[1] Enforced disappearances are becoming increasingly common in Pakistan and there seems to be no control over this issue. This harsh reality has torn families apart as people continue to go missing and no accountability is taken up by the government for this.  In the last 50 years about a million people have disappeared around the world.[2] The involvement of government and security agencies has lead to discrepancies in reports of enforced disappearances making this issue harder to document and rectify.[3] The brutal nature of this crime has led to widespread international disapproval, classifying it as a crime against humanity.

This paper highlights the need for legislation on enforced disappearances in Pakistan. Enforced disappearances have been recorded since the late 1900s in Pakistan yet little to no progress is made in dealing with this issue. The lack of legislation on enforced disappearance appears to be the greatest contributor towards the failure to stop this crime. This paper will argue that regulation and criminalization of enforced disappearances is necessary to put an end to this crime. This paper analyses both national and international obligations on Pakistan to curb enforced disappearances.

Enforced Disappearances continue in Pakistan

Enforced disappearances can be traced back to about 1985 in Pakistan.[4] Initially the large number of disappearances were seen as a result of the continuous political struggle between military dictatorship and democracy in Pakistan.  Surprisingly, even in 2016 political instability was one of the main driving forces behind disappearances in Balochistan and Sindh.[5] Both these regions are famous for their continuing lists of missing persons.[6]

Apart from political instability, the post 9/11 war on terror has also contributed to enforced disappearances in Pakistan.[7] Secret detention and disappearance of persons suspected to be associated with terrorist activities has become the norm ever since.[8] Given the open-ended nature of anti-terrorism laws in Pakistan suspicion of terrorist activities has such a wide scope that ordinary persons carrying out their daily activities become targets for enforced disappearances.[9] Persons residing in Khyber Pakhtunkhwa have been the primary targets for post 9/11 cases.[10]

Adding to the culture of enforced disappearances in Pakistan, the beginning of 2017 has been a marker for an even more alarming situation. The recent disappearance of some four human right activists from Lahore and Islamabad has raised concern for the safety of all individuals.[11] The unexplained disappearance of these human rights activists can only be linked to their advocacy of rights on social media platforms. The government has not provided any information on the whereabouts of these activists. Pakistan cannot turn a blind eye towards such widespread violation of fundamental rights. There is no criminal record to support the disappearance and the civil society is urging the government to recover those disappeared and properly arrest them if there is cause to arrest.[12]

Pakistan has been criticized for its ignorance towards ongoing enforced disappearances and urged to move towards protecting these persons.[13] The fear is that these activists will fall into the same story line as those disappeared before them. For example, Zahid Baloch, chairperson of the Baloch Student Organization disappeared on March 18^th 2014.[14] The government made no effort to recover information regarding Mr. Baloch’s whereabouts. Ignoring the remarks of the Pakistan Supreme court in 2014[15] and the recommendations of the UN Working Group on Enforced or Involuntary Disappearances in 2012;[16] the government continues to ignore its obligations to investigate such disappearances. In the last year, reports of disappearances from all over the country have been noted.[17]

Cases of enforced disappearances have been recorded since 1980s in Pakistan but the numbers recorded vary greatly.[18] There is no regulated reporting mechanism set up for families of victims. Often family members are unable to report disappearances because of fear of threat or intimidation by the involved agencies.[19] Under reporting is a very real concern and is often seen as a tactic to avoid addressing the issue of enforced disappearances. In today’s world numbers hold great value and so the disparity in the figures reported by Pakistan vouch for the continuing problem of missing persons. Annually two sets of figures are presented, one by the government and the other by human right agencies/NGOs. For example, in Balochistan, NGOs record over 14,000 persons are still missing while the government’s claims only 100 are missing.[20] The government insists disappearances are not increasing and instead the high numbers or missing persons are actually cases of abductions or kidnapping, not enforced disappearances.[21] Opposing this, non-governmental organizations argue that the lower number recorded by the government is simply a political manoeuvre to make the situation of enforced disappearances look better in Pakistan.

Media attention for disappearances is limited to a few days after the occurrence and then the story dies down with no further developments. The recent disappearances of human right activists from Lahore and Islamabad has received great media attention but the question is: for how long? Their disappearance is proof of the dangers of publicly voicing your opinion or an opinion that clashes with the authorities and forces of Pakistan. Even with the new digital rights laws in place, the masses remain hesitant to demand answers.[22] Besides the short-lived flooding of social media platforms and protests by local NGOs there seems to be no momentum for a legal solution to enforced disappearances in Pakistan.

Enforced Disappearances under Pakistani law

The state of enforced disappearances in Pakistan falls perfectly in line with the reality that enforced disappearances are not criminalized under the law. There is no law governing enforced disappearances in Pakistan. They are often dealt with under kidnapping (s.359, 360 Penal Code)[23] or abduction (s. 362 Penal Code).[24] It is inadequate to deal with enforced disappearances under these offenses as they do not cater to the severity of the crime. Moreover these sections are not sufficient as security/intelligence agencies will not be held accountable under these offenses. In order to ensure proper protection of victims there needs to be a move towards specific legislation for this problem.

Due to the lack of legislation on enforced disappearances most petitioners end up filing in the Supreme Court to ensure that their case is actually taken up and not just tossed aside. Since 2009, the Supreme Court has made efforts to take up cases of enforced disappearances and try to get some control over the issue.[25] The Supreme Court’s initiative to take actions suo motu has been the primary avenue for redress to victims of enforced disappearances.[26] In 2006, a petition was filed with a list of 41 persons who had disappeared.[27] The Supreme Court took up this case along with several others during this time to help curb this problem. These cases have not yielded any results because of lack of cooperation of the government and security agencies in Pakistan.

In 2013 a draft bill was proposed to deal with on-going cases of enforced disappearance.[28] The Bill was drafted behind closed doors and appeared to be a reflection of the authorities’ ignorance towards the issue .[29] It facilitated enforced disappearances by allowing the detention of persons instead of working towards prohibiting this act. The draft bill was merely a façade to make it seem like Pakistan was actively dealing with this issue. The proposed bill was however in line with the excessive powers granted under the Pakistan Protection Act 2014[30] (PPA). The PPA is an overreaching and broad counterterrorism legislation, which protects abuses of security forces at the cost of human right violations.[31] Laws such as the PPA have facilitated the lack of development on the issue of enforced disappearances in Pakistan. The PPA has legalized the actions of security forces to carry out arbitrary detentions. This makes it necessary to enact legislation for enforced disappearances or to at least criminalize it as an offense of its own in the Penal Code.

International law on Enforced Disappearances

The International Convention for the Protection of All Persons from Enforced disappearance[32] (herein ‘the convention’) is the primary instrument that governs enforced disappearances under international law. Article 2 defines enforced disappearances as:

“…the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State 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.”[33]

Enforced disappearance is a crime of great intensity, it includes the violation of several fundamental rights:  the right to life, right to be free from arbitrary detention, right to be free from torture or degrading treatment and the right to fair trial.[34] The present convention was necessary as it addresses all aspects of the crime; the duty on every state party to criminalize disappearances, the accountability of perpetrators and the right to redress/ compensation for victims or the families of the victim. Apart from this convention, enforced disappearances are also prohibited under Article 6 (the Rights to life) of the International Covenant on Civil and Political Rights (ICCPR),[35] article 1[36] of the Declaration on the Protection of All Persons from Enforced Disappearances and under the Universal Declaration of Human Rights (UDHR).[37]

The increasing importance of enforced disappearances has led to the development of a dialogue that categorizes this crime as a jus cogens[38] norm.[39] If we are to agree with this school of thought then a duty exists on all states to protect persons from enforced disappearance regardless of whether the state has ratified the convention.[40] In contrast, even if we dismiss the jus cogens status, enforced disappearances are a crime against humanity and a rule of customary international law; so states have an obligation under international law to prohibit enforced disappearances.[41]

National & International obligations on Pakistan calling for immediate legislative changes

Under international law there is a clear movement towards the prohibition of enforced disappearances. International law may be soft law but in this century it definitely holds weight. Pakistan is not a signatory of the International Convention on the Protection of All Persons from Enforced Disappearance. However, Pakistan does have a duty to not violate the purpose of conventions that it has ratified.[42] For instance, Pakistan has ratified the ICCPR and has an obligation to protect the right to life (under Article 6). It is important that Pakistan understands its international obligations and abides by them. Moreover, torture can be seen as ancillary to enforced disappearances. Majority cases of enforced disappearances include some form of torture/degrading treatment. Torture is an accepted jus cogens norm and so there can be no deviation from prohibition of torture.[43] In this light Pakistan has a duty to act on the on-going disappearances and ratifying the Convention on Enforced Disappearances will help achieve this goal.

Relying on the international instruments ratified by Pakistan and customary international law, it is essential to move towards criminalizing enforced disappearances under local laws. Pakistan must adhere to these international obligations as it will help push for criminalization of enforced disappearances under local laws and improve Pakistan’s standing in the international arena.

On the other hand, the continuation of enforced disappearances is a violation of the fundamental rights guaranteed under the Constitution of Pakistan, 1972. Though local laws do not explicitly deal with enforced disappearances there is definitely an obligation to bring in legislation on this issue. For example, even without criminalization of enforced disappearances these acts are not seen as legal and courts continue to condemn disappearances.

The right to life is enshrined under Article 9[44] of the 1973 Constitution of Pakistan. In the Muhabat case[45] the Supreme Court recognized the blatant violation of Article 9 of the Constitution and attempted to address this constitutional issue. Moreover, Article 4[46] of the Constitution guarantees the right of every person to liberty and protection of the law and Article 10A Constitution deals with the right to fair trial. When a person is disappeared they are denied access to the courts and removed from the protection of the law. The person is removed from the protection of the law and hence denied his/her right to due process. Enforced disappearances violate the fundamental rights set out in the Constitution and so there is an obligation under national law to bring in legislation to curb enforced disappearances and prevent further violations.

CONCLUSION:

Enforce disappearances have only increased in the last few years. There is no move towards prohibition or criminalization of enforced disappearances. Even if we ignore international obligations on Pakistan the constitutional violations cannot be ignored. The biggest challenge appears to be getting the state to act. The conflict is blatantly obvious and the latest disappearance of human rights activists only points to the failure of the government to address this issue. However, it is very possible that the authorities will continue to ignore this issue under the pretence of the war on terror and state security. Until enforced disappearances are incorporated into the law there can be no hope for redress for victims or accountability of perpetrators. Pakistan needs to criminalize this heinous crime in order to put an end to it.

[1] http://www.reuters.com/article/us-pakistan-activists-idUSKBN14V1WK?il=0

[2] (Sarkin, 2012)

[3] (Sarkin, 2012), (Mughal, 2013, p. 8)

[4] (Hassan, 2009, p. 24)

[5] (U.S. Deperatment of State, 2007, p. 2287)

[6] (A/HRC/22/45/Add.2 , 2013, pp. 9-11), See generally (Human Rights Watch, 2011)

[7] (Mughal, 2013) (Hassan, 2009)

[8] (Mughal, 2013, pp. 6-7)

[9] (Hassan, 2009, pp. 24-26)

[10] (A/HRC/22/45/Add.2 , 2013, p. 9)

[11] http://blogs.wsj.com/indiarealtime/2017/01/10/rights-groups-ask-pakistan-to-probe-disappearance-of-activists/

[12] https://www.geo.tv/latest/126842-Nisar-in-contact-with-intel-agencies-hopeful-of-Salman-Haiders-recovery

[13] (A/HRC/22/45/Add.2 , 2013)

[14] (International Commission of Jurists , 2014)

[15] (Muhabat Shah, 2014)

[16] (United National Human Rights Office of the High Commissioner, 2012)

[17] (United States Department of State, 2014, p. 4)

[18] See (Amnesty International, 2008)

[19] (Mughal, 2013, pp. 7-8), see (A/HRC/22/45/Add.2 , 2013)

[20] (A/HRC/22/45/Add.2 , 2013, p. 10), (Mughal, 2013, p. 9)

[21] (A/HRC/22/45/Add.2 , 2013, p. 10) The inaccuracy discussed above is clear in these contradictory reports of enforced disappearances to the Working Group. See (Mughal, 2013, p. 7) In 2010, two figures were reported, the government admitted to 965 disappearances while families and human rights groups provided a range from 200-7000. See generally (Ansari, 2012) and (Jilani, 2012).

[22] https://www.samaa.tv/pakistan/2017/01/online-crackdown-pakistan-blogger-salman-haider/

[23] s. 359 – Kidnapping: Kidnapping is of two kinds: Kidnapping from Pakistan and kidnapping from lawful guardianship.

1. 360 – Kidnapping from Pakistan, etc: Whoever conveys any person beyond the limits of Pakistan without the consent of that person, or of some person legally authorised to consent on behalf of that person is said to kidnap that person from Pakistan.

http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html

[24] S. 362 – Abduction: Whoever by force compels, or by any deceitful means induces, any person to go from any place, is said to abduct that person.

http://www.pakistani.org/pakistan/legislation/1860/actXLVof1860.html

[25] (A/HRC/22/45/Add.2 , 2013)

[26] (A/HRC/22/45/Add.2 , 2013, p. 8) (Hassan, 2009, p. 29)

[27] (Mughal, 2013, p. 9)

[28] (Dawn News, 2013)

[29] Id.

[30] Pakistan Protection Act 2014  http://www.na.gov.pk/uploads/documents/1404714927_922.pdf

[31] (Human Rights Watch, 2014)

[32] (Anon., 2006, p. 3)

[33] (Anon., 2006, p. 3)

[34] (Sarkin, 2012, pp. 538-39), (Dalia Vitkauskaitė-Meurice, 2010, pp. 199-200)

[35]Article 6 ICCPR

1. Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
2. In countries which have not abolished the death penalty, sentence of death may be imposed only for the most serious crimes in accordance with the law in force at the time of the commission of the crime and not contrary to the provisions of the present Covenant and to the Convention on the Prevention and Punishment of the Crime of Genocide. This penalty can only be carried out pursuant to a final judgement rendered by a competent court.

http://www.ohchr.org/en/professionalinterest/pages/ccpr.aspx

[36] Article 1, Declaration on the Protection of All Persons from Enforced Disappearance

1. Any act of enforced disappearance is an offence to human dignity.

It is condemned as a denial of the purposes of the Charter of the United Nations and as a grave and flagrant violation of the human rights and fundamental freedoms proclaimed in the Universal Declaration of Human Rights and reaffirmed and developed in international instruments in this field.

2. Any act of enforced disappearance places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families. It constitutes a violation of the rules of international law guaranteeing, inter alia, the right to recognition as a person before the law, the right to liberty and security of the person and the right not to be subjected to torture and other cruel, inhuman or degrading treatment or punishment.  It also violates or constitutes a grave threat to the right to life.

http://www.un.org/documents/ga/res/47/a47r133.htm

[37]Some of the fundamental freedoms that are listed in the UDHR and are denied by ongoing disappearances: Article 3 (Everyone has the right to life, liberty and security of person), Article 5 (No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment) and Article 9 (No one shall be subjected to arbitrary arrest, detention or exile). http://www.un.org/en/universal-declaration-human-rights/

[38] (Orakhelashvili, 2006, p. 50) “Jus cogens norms are norms that are so morally deplorable as to be considered absolutely unacceptable by the international community as a whole.”

[39] (Sarkin, 2012, pp. 541,564)

[40] (Walker, 1988, p. 1) Enforced Disappearances are listed under s. 702  which deals with crimes that form part of Jus cogens norms, American law institutes restatement third of foreign relations. See also (Xuncax v. Gramajo, 1995) The District Court of Massachusetts agreed that disappearances are covered by jus cogens. See also (Goiburú et al. v. Paraguay, 2006, ¶ 84) The Inter-American Court of Human Rights recognizes the right to be free from enforced disappearances as a jus cogens norm. See generally (Sarkin, 2012)

[41] (Amnesty International, 2008, p. 8)

[42] Supra note 10

[43] ­­ (Sarkin, 2012, p. 542) See also (Dalia Vitkauskaitė-Meurice, 2010)

[44] Article 9, Security of person: No person shall be deprive of life or liberty save in accordance with law.

[45] (Muhabat Shah, 2014)

[46] Article 4: “to enjoy the protection of law and to be treated in accordance with law is the inalienable right of every citizen, wherever he may be…”

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