Supreme Court of Pakistan: The Case of Missing Persons

Print Friendly

By

Dr. Tariq Hassan*

Abstract.

(The article reviews the role of the Supreme Court of Pakistan in dealing with the issue of missing persons. In that context, it discusses constitutional and human rights law and draws attention to the application of national criminal law for kidnappings and abductions. It reviews a person’s right to liberty, protection against arbitrary arrest and detention, and safeguards against preventive detention. It examines the emerging international law on forced disappearance of persons and highlights its notable features. It also points out the emergence of universal principles against extra-legal, arbitrary and summary executions. It further indicates the remedies available internationally but suggests the need for providing effective remedy by national courts, in particular the Supreme Court. Author).

Prologue

There are at present more than a hundred missing persons in Pakistan

– persons whose whereabouts are not known and whose families allege that they have been either arrested or abducted by the Government of Pakistan or its agencies or allies and are being detained illegally.1

Contrary to popular belief that the cases of missing persons are linked to the post-9/11 “war on terror” and that they are mainly prevalent in Pakistan, the issue of enforced disappearances predate that event and are endemic internationally.2 Since recording of such cases started in 1985, there were 118 reported cases in Pakistan up to 2006. Other than two post-9/11 years (2005 and 2006) when a military backed government was in power, the worst two pre-9/11 years for enforced disappearances in Pakistan during civilian rule have been 1995 and 1996:3

1985

4

1986

8

1989

1

1990

4

1991

3

1994

2

1995

41

1996

11

1998

4

1999

1

2000

1

2001

3

2002

1

2003

1

2004

2

2005

8

2006

23

Source: UN Doc. A/HRC/10/9 dated 6 February 2009

According to a conservative official estimate, at the end of 2008, there were ninety-four outstanding cases of missing persons in Pakistan reported by the United Nations.4 However, the Pakistan Government refuses to acknowledge the arrest or detention of these persons and has, despite the intervention by the Supreme Court of Pakistan, been either unable or unwilling to discover or disclose their fate or whereabouts. The missing persons, therefore, remain deprived of their liberty and do not have the protection of the law—a fundamental right granted to every citizen of Pakistan.

The deprivation of liberty of missing persons without any protection of the law is a clear negation of the fundamental rights regarding liberty and due process of law enshrined in the Pakistan Constitution, 1973. Consequently, the families of missing persons prompted the Supreme Court to take up the case of missing persons, which the Court did in exercise of its original jurisdiction pursuant to Article 184(3) of the Pakistan Constitution.5

The Supreme Court reportedly started investigating some 600 cases of “disappearances”. While some of these cases allegedly concerned terrorism suspects, many involved political opponents of the government. The Supreme Court, headed by Chief Justice Iftikhar Mohammad Chaudhry, publicly stated that it had overwhelming evidence that Pakistan’s intelligence agencies were detaining terror suspects and other opponents.6

The Supreme Court’s intervention in the matter, which was considered highly sensitive ostensibly on account of the Government’s proxy war on terror, led to the unprecedented dismissal of sixty superior court judges in Pakistan pursuant to the proclamation of emergency in 2007.7 With the recent restoration of ousted judges, the Supreme Court is likely to resume the cases of missing persons with added vigor needed to protect the fundamental rights of citizens.

The  purpose  of  this  article  is  to  examine  the  law  regarding missing persons and the role of the judiciary in protecting their rights thereunder.

Constitutional and Human Rights Law

The Right to Liberty

The Pakistan Constitution guarantees the liberty of persons – the most fundamental human right. Article 4 of the Constitution, inter alia, provides: “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, and of every other person for the time being within Pakistan … In particular … no action detrimental to the life, liberty, body, reputation or property of any person shall be taken except in accordance with law.”8 Furthermore, Article 9 of the Constitution provides: “No person shall be deprived of life or liberty save in accordance with law.” These constitutional rights are reinforced by Pakistan’s international human rights obligations as well.9

Protection against Arbitrary Arrest and Detention

Human rights law furthermore provides protection against arbitrary arrest and detention. Article 9 of the Universal Declaration of Human Rights states: “No one shall be subjected to arbitrary arrest, detention or exile.”10 Article 9 of the International Covenant on Civil and Political Rights elaborates:

  1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.
  2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.
  3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.
  4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
  5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation.

Persons deprived of their liberty are also required to be treated with humanity and with respect for the inherent dignity of the human person.11

The above-noted international principles regarding arrest and detention are reflected in Article 10 of the Pakistan Constitution, which lays down the requisite safeguards against arbitrary arrest and detention. Accordingly, no arrested person can be detained in custody without being informed, as soon as possible, of the grounds for such arrest, nor is he denied the right to consult and be defended by a legal practitioner of his choice. Every person who is arrested and detained in custody is required to be produced before a magistrate within a period of twenty-four hours of such arrest, excluding the time necessary for the journey from the place of arrest to the court of the nearest magistrate.  Furthermore, no such person is required be detained in custody beyond the said period without the authority of a magistrate.12 The foregoing provisions do not apply to any person who is arrested or detained under any law providing for preventive detention.13

Safeguards against Preventive Detention

Since preventive detention is a preemptive law enforcement measure which negates a person’s right to freedom its application is limited under specific legislation required for the purpose. In fact, given its restrictive nature, Article 10 of the Pakistan Constitution itself lays down the contours for making preventive detention laws.14

Various legislations for preventive detention have been enacted at  the  federal15    and  provincial16    levels  in  Pakistan  providing  for detailed procedural safeguards.17  These legislations while granting the Government the power to arrest and detain suspected persons lay down detailed procedures for the exercise of such powers. They do not in any way permit the Government to take away a person’s freedom without following the due process of law. Accordingly, where a detention order has been made against a person, the authority making the order is required to (i) communicate to such person, as soon as possible, the grounds on which the order has been made, (ii) inform him that he is at liberty to make a representation to Government against the order, and (iii) afford him the earliest opportunity of doing so.18

The missing persons have apparently neither been formally charged under any criminal law nor have they been detained as a preventive measure under any federal or provincial preventive detention laws. As such, none of the constitutional or other legal procedures for either arrest and detention or preventive detention appear to have been followed in case of missing persons. There has, therefore, been a clear negation of both constitutional norms and international human rights principles. Under the circumstances, the Supreme Court’s suo moto intervention at the behest of the family members of the missing persons is totally warranted.

The cases of missing persons not only involve a violation of constitutional law but attract the application of national criminal law and procedure as well.  They furthermore fall within the ambit of the emerging international law regarding enforced disappearances.

Application of National Criminal Law

In Pakistan, enforced disappearance constitutes the criminal offense of kidnapping or abduction under the Pakistan Penal Code 1860 (PPC).19

Accordingly, it is kidnapping from Pakistan if someone conveys any person beyond the limits of Pakistan without the consent of that person;20 furthermore, it is abduction if someone by force compels any person to go from any place21 – as has been alleged by the families of the missing persons.

Different forms of punishments are prescribed for different types of kidnappings and abductions.22  A person who wrongfully conceals or confines persons who have been kidnapped or abducted is equally culpable.23  The court within the local limits of whose jurisdiction the person kidnapped or abducted was kidnapped or abducted has the power to inquire into and try the offence of kidnapping or abduction.24  The exercise of criminal jurisdiction in accordance with national law is in addition to any jurisdiction exercisable under international law.25

International Law on Forced Disappearance of Persons

There is a growing body of international law specifically on enforced disappearances which is pertinent to the issue of missing persons. In 1992, the United Nations General Assembly proclaimed a Declaration on the Protection of all Persons from Enforced Disappearance (the Declaration) in light of its concern “that in many countries, often in a persistent manner, enforced disappearances occur, 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 disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law.”26

The Declaration’s main concern is that abducted persons are placed outside the protection of the law. It states that any act of enforced disappearance (i) places the persons subjected thereto outside the protection of the law and inflicts severe suffering on them and their families; (ii) 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; and (iii) violates or constitutes a grave threat to the right to life.27  It, therefore, calls upon States not to practice, permit or tolerate enforced disappearances. It further requires States to contribute by all means to the prevention and eradication of enforced disappearances by cooperating at the national and regional levels and the United Nations.28

Crime against Humanity

The Declaration considered the systematic practice of enforced disappearances  to  be  in  the  nature  of  a  crime  against  humanity.29

The principles enunciated in the Declaration are now sought to be transformed into legal obligations under the International Convention for the Protection of All Persons from Enforced Disappearance (the Convention).30 The Convention also lays down that the widespread and systematic practice of enforced disappearance constitutes a crime against humanity as defined in applicable international law and attracts the consequences provided for under such applicable international law.31

The applicable international law could be the Statute of the International Criminal Court (the Statute), which treats enforced disappearance of persons – when  committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack—as a “crime against humanity.”32 It defines the term “enforced disappearance of persons” to mean “the arrest, detention or abduction of persons by, or with the authorization, support or acquiescence of, a State or a political organization, followed by a refusal to acknowledge that deprivation of freedom or to give information on the fate or whereabouts of those persons, with the intention of removing them from the protection of the law for a prolonged period of time.”33

The definition provided in the Statute is somewhat more restrictive than the one provided in the Convention, which defines “enforced disappearance” to mean 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.34

The Declaration requires States to take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance in any territory under their jurisdiction.35

Legislative Measures

States are required to take legislative measures to:

(a)  Establish the conditions under which orders of deprivation of liberty may be given.

(b) Indicate those authorities authorized to order the deprivation of liberty.

(c)  Guarantee that any person deprived of liberty shall be held solely in officially recognized and supervised places of deprivation of liberty.

(d) Guarantee that any person deprived of liberty shall be authorized to communicate with and be visited by his or her family, counsel or any other person of his or her choice, subject only to the conditions established by law, or, if he or she is a foreigner, to communicate with his or her consular authorities, in accordance with applicable international law.

(e)  Guarantee access by the competent and legally authorized authorities and institutions to the places where persons are deprived of liberty, if necessary with prior authorization from a judicial authority.

(f)  Guarantee that any person deprived of liberty or, in the case of a suspected enforced disappearance, since the person deprived of liberty is not able to exercise this right, any persons with a legitimate interest, such as relatives of the person deprived of liberty, their representatives or their counsel, shall, in all circumstances, be entitled to take proceedings before a court, in order that the court may decide without delay on the lawfulness of the deprivation of liberty and order the person’s release if such deprivation of liberty is not lawful.36

Furthermore, States are required to take necessary measures to prevent and impose sanctions for (a) delaying or obstructing remedies; (b) failure to record the deprivation of liberty of any person, or the recording of any information which the official responsible for the official register knew or should have known to be inaccurate; and (c) refusal to provide information on the deprivation of liberty of a person, or the provision of inaccurate information, even though the legal requirements for providing such information have been met.37

Administrative Measures

States are required to prohibit orders or instructions directing, authorizing or encouraging any enforced disappearance. Any person receiving such an order or instruction has the right and duty not to obey it. No order or instruction of any public authority, civilian, military or other, may be invoked to justify an enforced disappearance. Law enforcement officials are, therefore, required to be trained accordingly.38

States are furthermore required to establish rules under their national law indicating those officials authorized to order deprivation of liberty, establishing the conditions under which such orders may be given, and stipulating penalties for officials who, without legal justification, refuse to provide information on any detention. The States are required to likewise ensure strict supervision, including a clear chain of command, of all law enforcement officials responsible for apprehensions, arrests, detentions, custody, transfers and imprisonment, and of other officials authorized by law to use force and firearms.39

Judicial Measures

The right to a prompt and effective judicial remedy is considered essential to prevent enforced disappearances and determine the whereabouts or state of health of persons deprived of their liberty, and/ or identify the authority responsible for the deprivation of liberty.40

Any person deprived of liberty is required to be held in an officially recognized place of detention and, in conformity with national law, be brought before a judicial authority promptly after detention. An official up-to-date register of all persons deprived of their liberty is required to be maintained in every place of detention. The information contained in these registers is required to be made to any judicial or other competent authority seeking to trace the whereabouts of a detained person.41

The right to information may be restricted, on an exceptional basis, where strictly necessary and where provided for by law only where a person is under the protection of the law and the deprivation of liberty is subject to judicial control.42 States are required to guarantee to persons with a legitimate interest in information – such as relatives of the person deprived of liberty, their representatives or their counsel – the right to a prompt and effective judicial remedy as a means of obtaining without delay the requisite information. This right to a remedy cannot be suspended or restricted under any circumstances.43

Judicial authorities are required to rule promptly on matters where their prior authorization is necessary to obtain access to any place of detention or any other place where there are reasonable grounds to believe that the disappeared person may be present.44

Penal Action

All acts of enforced disappearance are required to be offences under criminal law punishable by appropriate penalties which take into account their extreme seriousness.45  States are required to take any lawful and appropriate action available to them to bring to justice all persons, presumed responsible for an act of enforced disappearance, who are found to be within their jurisdiction or under their control.46

States are required to take necessary measures to hold criminally responsible at least:

(a)  Any person who commits, orders, solicits or induces the commission of, attempts to commit, is an accomplice to or participates in an enforced disappearance;

(b) A superior who:

(i)  Knew, or consciously disregarded information which clearly indicated, that subordinates under his or her effective authority and control were committing or about to commit a crime of enforced disappearance;

(ii) Exercised effective responsibility for and control over activities which were concerned with the crime of enforced disappearance; and

(iii) Failed to take all necessary and reasonable measures within his or her power to prevent or repress the commission of an enforced disappearance or to submit the matter to the competent authorities for investigation and prosecution.

A military commander or a person effectively acting as a military commander may be held to higher standards of responsibility applicable under relevant international law. No order or instruction from any public authority, civilian, military or other, can be invoked to justify an offence of enforced disappearance.47

A person suspected of having committed an offence of enforced disappearance is required to be apprehended and held in custody for such time as is necessary to ensure the person’s presence at criminal, extradition or other legal proceedings.48  The Convention can be used as the necessary legal basis for extradition in respect of the offence of enforced disappearance, if necessary.49 However a person is not allowed to be extradited if there are substantial grounds for believing that he or she would be in danger of being subjected to enforced disappearance.50

States are, subject to any domestic law conditions and international obligations, required to afford one another the greatest measure of mutual legal assistance in connection with criminal proceedings brought in respect of an offence of enforced disappearance, including the supply of all evidence at their disposal that is necessary for the proceedings.51

Persons  alleged  to  have  caused  enforced  disappearance  are required to be tried only by the competent ordinary courts and not by any other special tribunal, in particular military courts.52 Any person against whom proceedings are brought in connection with an offence of enforced disappearance is required to be guaranteed fair treatment at all stages of the proceedings. Any person tried for an offence of enforced disappearance shall benefit from a fair trial before a competent, independent and impartial court or tribunal established by law.53

for persons who, having participated in enforced disappearances, are instrumental in bringing the victims forward alive or in providing voluntarily information which would contribute to clarifying cases of enforced disappearance.54  However, persons who have or are alleged to have committed offences relating to enforced disappearances cannot benefit from any special amnesty law or similar measures that might have the effect of exempting them from any criminal proceedings or sanction. Furthermore, the extreme seriousness of acts of enforced disappearance are required be taken into account in case the right of pardon is exercised.55

Civil Liability

In addition to such criminal penalties as are applicable, and without prejudice  to  the  international  responsibility  of  the  State  concerned in accordance with the principles of international law, enforced disappearances render their perpetrators and the State or State authorities which organize, acquiesce in or tolerate such disappearances liable under civil law.56

States are required to provide the victims of enforced disappearance the right to obtain reparation and prompt, fair and adequate compensation in their legal systems.57  States are also required to take the appropriate steps with regard to the legal situation of disappeared persons whose fate has not been clarified and that of their relatives, in fields such as social welfare, financial matters, family law and property rights.58

Extra-legal, Arbitrary and Summary Executions

Enforced disappearances often result in  extra-judicial  killings. As such, Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions have been established to guarantee effective protection, through judicial or other means, to individuals and groups who are in danger of extra-legal, arbitrary or summary executions.59 The United Nations Economic and Social Council has recommended that these principles should be taken into account and respected by Governments within the framework of their national legislation  and  practices.60    Governments  are  accordingly  required to make every effort to prevent extra-legal, arbitrary and summary executions through measures such as diplomatic intercession, improved access of complainants to intergovernmental and judicial bodies, and public denunciation. Intergovernmental mechanisms are required be used to investigate reports of any such executions and to take effective action against such practices.61

International Remedy

At the international level, other than the judicial forum, the International Criminal Court, there is an administrative forum available to deal with matters concerning enforced disappearances as well. A Committee on Enforced Disappearances has been established under the Convention to carry out the functions provided thereunder.62 A request that a disappeared person should be sought and found may be submitted to the Committee by relatives of the disappeared person or their legal representatives, their counsel or any person authorized by them, as well as by any other person having a legitimate interest.63

Role of the Court

The initiation of the case of missing persons by the Supreme Court of Pakistan is an important milestone in the judicial history of Pakistan. It follows similar examples of court intervention in matters involving fundamental rights in other countries.

In 1997, the Supreme Court of India appointed the National Human Rights Commission (NHRC) of India as its sui generis body to examine secret cremations and to redress fundamental human rights violations.64

More recently, the United States Supreme Court intervened more directly in cases involving certain missing persons found in Guantanamo Bay.65

In 2007, the Supreme Court of Nepal issued a verdict against the enforced disappearance of political detainees in Nepal. The verdict has broken the long tradition of a conservative and passive approach to justice and is likely to have a long-lasting effect on the country’s political governance, both from the municipal as well as international law perspectives.66

The efficacy of court interventions in matters relating to missing persons is often questioned especially in situations where the military trace the whereabouts of disappeared persons, since they lack the power to search places of detention controlled by the military. It is also alleged that the right to habeas corpus has been systematically undermined, and in some cases, the courts have ordered that the disappeared persons be produced before the courts, but these orders have reportedly been ignored by the military. In addition, those released are warned not to speak publicly about their experiences in detention.67

The situation is not much better under civilian rule. Various cases in Pakistan bear testimony to the fact that finding the whereabouts of missing persons and giving them access to justice can be just as elusive. For example, after the large scale arbitrary arrests and abductions of members of the MQM in 1995, family members filed petitions with the High Courts of Lahore and Karachi, requesting that their relatives be brought before a judicial authority. However, it is reported that such persons were never produced before the courts or any judicial body, nor was any information provided to the relatives about the whereabouts of these detained persons. It is alleged that the perpetrators of these disappearances acted with impunity and the Government took no action against such persons, in spite of its responsibility under both national and international law.68

Executive authorities are generally reluctant to assist courts in matters of missing persons because of their own alleged involvement. A recent constitutional petition seeking direction to discover the whereabouts of a missing person and to produce him before the court is a typical example of the court’s desperate attempts to unsuccessfully get cooperation from every conceivable executive authority. In this case, the grievance of the petitioner was that her husband, who was a Pesh Imam in a Mosque, was arrested by the Station House Officer (S.H.O.) of the police station concerned and thereafter handed over to other law enforcement agencies. His whereabouts were not known since then. The S.H.O. concerned in his comments denied arresting the petitioner’s husband and handing him over to other agencies. Under the circumstances, the High Court directed the Deputy Inspector-General (Operations) to hold an inquiry into the matter after recording statements of petitioner and any other witness whom petitioner wanted to produce, and submit a detailed report to the High Court. The High Court further directed the Deputy Inspector-General (Operations) to constitute a team to search and discover whereabouts of the missing person and produce him before the High Court. He was asked to at least disclose the agency in whose possession the missing person was so that an appropriate order could be passed for his production before the High Court. No allegation was on record to the effect that some Federal Agency was holding the missing person in its custody. Nonetheless, the High Court also directed the Secretary Interior, Secretary Defense, as well as Director-General Military Intelligence to employ all resources at their disposal to procure the person and produce him before the High Court.69

This situation is likely to persist unless the courts prosecute both those found guilty of the crime of enforced disappearance as well as those who aid and abet such a crime.

Epilogue

It has been noted in a recent report that the situation in Pakistan represents a major obstacle for the proper implementation of the Declaration on the Protection of all Persons from Enforced Disappearance, inasmuch as the state of emergency and the amended Army Act during the previous military backed regime posed a threat for compliance in particular of the following provisions of the Declaration: 70

Article 2.2 (obligation to prevent and eradicate enforced disappearance),

Article 3 (obligation to take effective legislative, administrative, judicial or other measures to prevent and terminate acts of enforced disappearance),

Article 7 (obligation not to invoke internal political instability nor any other public emergency to justify enforced disappearance),

Article 10 (obligation to hold people deprived of their liberty in officially recognized places of detention and to bring them before a judicial authority promptly after detention),

Article 13 (obligation to investigate cases of enforced disappearance),

Articles 14 and 16 (obligation to try those accused of enforced disappearance before competent ordinary civil courts), and

Article 18 (obligation not to adopt amnesty laws or similar measures that might have the effect of exempting perpetrators of enforced disappearances from any criminal proceedings or sanctions). Despite the fact that the emergency has been lifted and there is now a democratically elected government in place in Pakistan, the situation remains more or less the same. Pakistani authorities are still either unwilling or unable to bring perpetrators of enforced disappearances to justice. Even though there appears to have been a clear violation of international principles enunciated in the Declaration and in some cases breach of national and international laws as well, the prohibitive cost of instituting cases for the recovery of missing persons in foreign or international courts is prohibitive, making justice outside inaccessible for the missing persons and their families.

Pakistan’s legislative framework is fairly well developed to deal with the issue of missing persons. However, what is lacking is the administrative will to enforce the available and applicable laws perhaps because of the Government’s own complicity in the matter. Consequently, the only meaningful recourse that families of missing persons have is to rely on the courts in Pakistan, particularly the Supreme Court, to help find the whereabouts of all the missing persons and bringing the perpetrators of this crime to justice.

The Supreme Court needs to not only discover the whereabouts of the missing persons but also to ensure the restoration of their constitutional rights of security of person and protection of law through impartial and fair trials of these persons in accordance with established legal procedures. Public interest demands not only restitution in this grave matter but retributive justice as well to preclude such events from happening in the future. The Supreme Court should carry out impartial investigations against those government functionaries who are accused of ordering or carrying out enforced disappearances and mete out just punishment commensurate with the crime.

This article is generally dedicated to the missing persons, the families of the missing persons who are as much victims of enforced disappearance, an international crime against humanity, and to the determined saviors of these persons.

References:

1              Enforced disappearances are characterized by an official shroud of secrecy. As a result, it is difficult to determine how many people the Pakistani government has subjected to enforced disappearance. Many people remain silent about their relatives’ disappearance for fear of repercussions for the “disappeared” or themselves. Their cases neither reach the courts nor attract media attention. See, Amnesty International Report: Denying the Undeniable: Enforced Disappearances in Pakistan (2008) (http://www.amnesty.org/en/ library/info/ASA33/018/2008/en). See also, Amnesty International Public Statement, Pakistan: Resolve hundreds of Baluch ‘disappearances’, ASA 33/001/2009 dated 25

February 2009.

2              The issue of missing persons is neither unique to Pakistan nor a byproduct of the war on terror as is commonly perceived in Pakistan. It is a universal phenomenon which pre-dates the September 11 aerial attacks in the US which resulted in the so-called war on terror. It is perhaps a phenomenon that developed in modern times under military dictatorships in Latin American countries leading to the adoption of the Inter-American Convention on Forced Disappearance of Persons in 1994.

3              This was due to a “clean-up” operation conducted by the police, the paramilitary group rangers, and other law enforcement agencies, resulting in the arbitrary arrests, abductions and subsequent disappearances of members of the MQM, a political party allegedly involved in terrorism activities domestically.

4              See, para. 296, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/10/9 dated 6 February 2009.

5              Article 184(3) of the Pakistan Constitution, in relevant part, provides: “…the Supreme Court shall, if it considers that a question of public importance with reference to the enforcement of any of the Fundamental Rights conferred by Chapter I of Part II is involved, have the power to make an order of the nature mentioned in the said Article.”

6              See, para. 302, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/10/9 dated 6 February 2009.

7     Proclamation of Emergency, Gazette of Pakistan, Extraordinary, Part I, 3rd November 2007,

reproduced in 2008 PLD 108 (Federal Statutes). The Proclamation, inter alia, provided the following reasons for proclaiming emergency and ordering the Pakistan Constitution to be held in abeyance: “… WHEREAS some members of the judiciary are working at cross purposes with the executive and legislature in the fight against terrorism and extremism thereby weakening the Government and the Nation’s resolve and diluting the efficacy of its actions to control this menace … there has been increasing interference by some members of the judiciary in government policy … the police force has been completely demoralized and is fast losing its efficacy to fight terrorism and Intelligence Agencies have been thwarted in their activities and prevented from pursuing terrorists … some hard-core militants, extremists, terrorists and suicide bombers, who were arrested and being investigated were ordered to be released. The persons so released have subsequently been involved in heinous terrorist activities, resulting in loss of human life and property. Militants across the country have, thus, been encouraged while law enforcement agencies subdued … some judges by overstepping the limits of judicial authority have taken over the executive and legislative functions … the Government is committed to the independence of the judiciary and the rule of law and holds the superior judiciary in high esteem, it is nonetheless of paramount importance that the Honourable Judges confine the scope of their activities to the judicial function and not assume charge of administration … an important Constitutional institution, the Supreme Judicial Council has been made entirely irrelevant and by a recent order and judges have, thus, made themselves immune from inquiry into their conduct and put themselves beyond accountability … the humiliating treatment meted to government officials by some members of the judiciary on a routine basis during court proceedings have demoralized the civil bureaucracy and senior government functionaries, to avoid being harassed, prefer inaction…” (emphasis added).

8              Art. 4(1)&(2)(a), Pakistan Constitution.

9              See, Article 3, Universal Declaration of Human Rights (adopted and proclaimed by the United Nations General Assembly resolution 217 A (III) of 10 December 1948): “Everyone has the right to life, liberty and security of person.” See also, Article 9, International Covenant on Civil and Political Rights. Pakistan, having assented to, is bound by both these international instruments.

10   For an exhaustive exposition of this article see, Hassan, “Article 9(1) of the International Covenant on Civil and Political Rights: Background and Perspective”, Denver Journal of International Law and Policy 153-183 (1973).

11   See, Article 10(1), International Covenant on Civil and Political Rights.

12   Sec. 10(1) & (2). Pakistan Constitution.

13   Art. 10(3), Pakistan Constitution.

14   Specific requirements and elaborate procedures for preventive detention laws have been laid down in Art. 10(4)-(8) of the Pakistan Constitution: “No law providing for preventive detention shall be made except to deal with persons acting in a manner prejudicial to the integrity, security or defence of Pakistan or any part thereof, or external affairs of Pakistan, or public order, or the maintenance of supplies or services, and no such law shall authorize the detention of a person for a period exceeding (three months) unless the appropriate Review Board has, after affording him an opportunity of being heard in person, reviewed his case and reported, before the expiration of the said period, that there is, in its opinion, sufficient cause for such detention, and, if the detention is continued after the said period of (three months), unless the appropriate Review Board has reviewed his case and reported, before the expiration of each period of three months, that there is,

in its opinion, sufficient cause for such detention…”. This article does not apply to enemy aliens. See, Art. 10(9), id.

15   See, e.g., the Security of Pakistan Act, 1952, which provides for preventive detention in matters relating to defense, external affairs, and the security of Pakistan.

16  See, e.g., Punjab Maintenance of Public Order Ordinance, 1960, which provides for preventive detention in the Province of the Punjab.

17   These legislations have been enacted pursuant to the Fourth Schedule of the Pakistan Constitution, which authorizes the legislature to pass various kinds of laws regarding preventive detention. See, e.g., para. 1 of Part I, Federal Legislative List (preventive detention for reasons of State connected with defence, external affairs, or the security of Pakistan or any part thereof; persons subjected to such detention); paras. 14 & 15 of the Concurrent Legislative List (preventive detention for reasons connected with the maintenance of public order, or the maintenance of supplies and services essential to the community; persons subjected to such detention; and persons subjected to preventive detention under Federal authority). Members of the National Assembly have been exempted from preventive detention. See, Members of National Assembly (Exemption from Preventive Detention and Personal Appearance) Ordinance, 1963.

18  Sec. 3(6), The Punjab Maintenance of Public Order Ordinance, 1960. The authority making any such orders has, however, been granted the discretion to refuse to disclose facts which such authority considers to be against public interest to disclose. See, proviso to Sec. 3(6), id.

19   See, Chapter XVI-A regarding wrongful restraint and wrongful confinement, PPC.

20   Secs. 359 & 360, PPC.

21   Sec. 362, PPC.

22   See, e.g., secs. 363, 365 & 367 dealing with punishment for kidnapping, kidnapping or abducting with intent secretly and wrongfully to confine person, and kidnapping or abducting in order to subject person to grievous hurt etc.

23   Sec. 368, PPC.

24   Sec. 181(4), Code of Criminal Procedure, 1898.

25   See generally Art. 9(3), International Convention for the Protection of All Persons from

Enforced Disappearance.

26   UN General Assembly Resolution A/RES/47/133 dated  18 December 1992, reprinted in COLLECTION OF INTERNATIONAL INSTRUMENTS AND LEGAL TEXTS CONCERNING REFUGEES by Office of the United Nations High Commissioner for Refugees, at p.236 (2007).

27   Art. 1, Declaration on the Protection of all Persons from Enforced Disappearance.

28   Art. 2, Declaration on the Protection of all Persons from Enforced Disappearance. At the regional level, the Latin American countries adopted the Inter-American Convention on Forced Disappearance of Persons on 9 June 1994. This Convention came into force on 28

March 1996.

29 Fourth preamble, Declaration on the Protection of all Persons from Enforced Disappearance. Later, the 1994 Inter-American Convention on Forced Disappearance of Persons reaffirmed “that the systematic practice of enforced disappearances of persons constitutes a crime against humanity” (Sixth preamble).

30   The Convention was adopted by the United Nations in New York on 20 December 2006 during the sixty-first session of the General Assembly by resolution A/RES/61/177, reprinted in COLLECTION OF INTERNATIONAL INSTRUMENTS AND LEGAL TEXTS CONCERNING REFUGEES by Office of the United Nations High Commissioner

for Refugees, at p.223 (2007). Pakistan is not yet a signatory to the Convention. India signed the Convention on 6 February 2007. For an overview of the Convention see generally, McCrory, “The International Convention for the Protection of all Persons from Enforced Disappearance, 7 Human Rights Law Review 545-566 (2007).

31   Art.  5,  International  Convention  for  the  Protection  of All  Persons  from  Enforced

Disappearance.

32   Art. 7(1)(i), Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9 dated 17 July 1998. The Statute entered into force on 1 July 2002. It has been ratified by more than 100 countries.

33   Art. 7(2)(i), id.

34   Art.  2,  International  Convention  for  the  Protection  of All  Persons  from  Enforced

Disappearance.

35   Art. 3, Declaration on the Protection of all Persons from Enforced Disappearance.

36   Art. 17(2), International Convention for the Protection of All Persons from Enforced

Disappearance.

37   Article 22, International Convention for the Protection of All Persons from Enforced

Disappearance.

38   See Art. 6, Declaration on the Protection of all Persons from Enforced Disappearance.

39   Art. 12, Declaration on the Protection of all Persons from Enforced Disappearance.

40   Art. 9, Declaration on the Protection of all Persons from Enforced Disappearance.

41   Art. 10, Declaration on the Protection of all Persons from Enforced Disappearance. See also Art. 17(3), International Convention for the Protection of All Persons from Enforced Disappearance.

42   Art. 20(1), International Convention for the Protection of All Persons from Enforced

Disappearance.

43   Art. 20(2), International Convention for the Protection of All Persons from Enforced

Disappearance.

44   See Art. 12(3)(b), International Convention for the Protection of All Persons from

Enforced Disappearance.

45   Art. 4, Declaration on the Protection of all Persons from Enforced Disappearance. States are required to (i) take the necessary measures to ensure that enforced disappearance constitutes an offence under their criminal law; and (ii) make the offence of enforced disappearance punishable by appropriate penalties which take into account its extreme seriousness (Arts. 4 & 7(1), International Convention for the Protection of All Persons from Enforced Disappearance). This becomes all the more important given some of the shortcomings of the current international legal framework in holding individuals criminally responsible. See, Anderson, “How Effective is the International Convention for the Protection of All Persons From Enforced Disappearance Likely to be in Holding Individuals Criminally Responsible for Acts of Enforced Disappearance?,” 7 Melbourne Journal of International Law 245 (2006).

46   Art. 14, Declaration on the Protection of all Persons from Enforced Disappearance.

47   Art.  6,  International  Convention  for  the  Protection  of All  Persons  from  Enforced

Disappearance.

48   See, Art. 10(1), International Convention for the Protection of All Persons from Enforced

Disappearance.

49   See Art. 13, International Convention for the Protection of All Persons from Enforced

Disappearance.

50   Art. 16, International Convention for the Protection of All Persons from Enforced

Disappearance.

51   Art. 14, International Convention for the Protection of All Persons from Enforced

Disappearance.

52   Art. 16, Declaration on the Protection of all Persons from Enforced Disappearance.

53   Art. 11(3), International Convention for the Protection of All Persons from Enforced

Disappearance.

54   Art. 4, Declaration on the Protection of all Persons from Enforced Disappearance. See also, Art. 7(2), International Convention for the Protection of All Persons from Enforced Disappearance.

55   Art. 18, Declaration on the Protection of all Persons from Enforced Disappearance.

56   Art. 5, Declaration on the Protection of all Persons from Enforced Disappearance.

57   Art. 24(4), International Convention for the Protection of All Persons from Enforced Disappearance. This is in harmony with Article 9(5) of the International Covenant on Civil and Political Rights, which enables anyone who has been the victim of unlawful arrest or detention to have an enforceable right to compensation.

58   Art. 24(6), International Convention for the Protection of All Persons from Enforced Disappearance. This is similar to Art. 10(8) of the Pakistan Constitution, which requires the appropriate authority to fix a reasonable subsistence allowance for the family of the person held under preventive detention.

59   Para. 4, Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions Recommended by UN Economic and Social Council Resolution

1989/65 of 24 May 1989.

60   Para. 1, UN ECOSOC Resolution 1989/65.

61   Para. 8, Principles on the Effective Prevention and Investigation of Extra-legal, Arbitrary and Summary Executions Recommended by Economic and Social Council resolution

1989/65 of 24 May 1989.

62   Art. 26(1), International Convention for the Protection of All Persons from Enforced

Disappearance.

63   Art. 30(1), International Convention for the Protection of All Persons from Enforced

Disappearance.

64   See, para. 181, Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc. A/HRC/10/9 dated 6 February 2009.

65   See, Rasul vs. Bush, 542 U.S. 466 (2004) and Hamdan v. Rumsfeld, 548 U.S. 557 (2006).

66   See commentary “Against Enforced Disappearance: the Political Detainees’ Case before the Nepal Supreme Court by Kishor Uprety in Chinese Journal of International Law (2008), Vol. 7, No. 2, 429–457.

67   See, para. 274, UN Doc. A/HRC/7/2 dated 10 January 2008. See also, paras. 211 & 213, UN Doc. A/HRC/4/41 dated 25 January 2007 citing the case of disappearance in 1994 of a criminal defense lawyer in India, who represented victims of human rights abuses, still pending in the Supreme Court of India in 2006!

68   See Para. 333, UN Doc. E/CN.4/1996/38 dated 15 January 1996.

69   Naz Bibi v. Station House Officer, 2006 P.Cr.L.J. 1447 (Karachi).

70   Para. 300, UN Doc. A/HRC/10/9 dated 6 February 2009.