Today, the world is commemorating the International Day of the Victims of Enforced and Involuntary Disappearances, standing with the victims of enforced disappearance (ED), asking the Government of Pakistan to ratify the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED), specifically criminalise ED, bring the perpetrator of ED to justice and to curb the legal and procedural impunity for the perpetrators.
ICPPED was adopted by the United Nations General Assembly (UNGA) on 20 December 2006 while it entered into force on 23rd December 2010. The UNGA through its resolution 65/209 decided and declared 30th August as the International Day of the Victims of ED, to be observed every year. Although the ICPPED has been signed by 96 states and has been ratified by 57 states it is yet to be ratified by Pakistan.
Pakistan’s 3rd UPR will be in the upcoming 28th session of Human Rights Council, scheduled in Oct-Nov2017. In the 2nd Cycle of UPR held in 2012, Pakistan accepted four recommendations with a promise to fulfil, noted two and rejected one, related to ED. One accepted recommendation asked Pakistan to specifically criminalise ED in the Penal Code and reinforce the capacities of the Commission on ED. The second was requesting Pakistan to reinforce its efforts to fight impunity regarding cases of ED by bringing all responsible persons to justice, while the third accepted recommendation was to “ensure investigations and prosecution of those responsible for abduction and ED.”
Although Pakistan accepted the above-noted recommendations, it failed to specifically criminalise EDs. It hasn’t initiated any procedural steps or legislation to curb impunity conferred on perpetrators, nor has it taken any steps to investigate EDs or to prosecute the perpetrators.
Like, in the extraordinary situation of terrorism, the President of Pakistan promulgated Actions in Aid to Civil Power Regulations (AACPR), for Federally Administered Tribal Area (FATA) and Provincially Administered Tribal Area (PATA) on June 27th, 2011. A retrospective effect was given to AACPR from February 2008. AACPR empowered the military to make arrests and keep the ‘suspects’ in prolonged detentions in the internment centres, established in FATA and PATA. Under AACPR, the ‘suspects’ illegally arrested or detained after February 2008 were considered legally arrested and detained, after June 2011.
The Peshawar High Court (PHC) has shown its infuriation on the non-functioning of the Oversight Broad established under AACPR many times. Citing its duty which is to review cases of an interned person within 120 days. The data shared by Peshawar High Court in 2014 shows that around 1992 persons were kept in these internment centres.
After the Peshawar Army Public School incident in December 2014, military courts were established for the trial of a civilian suspect of terrorism by amendments in Pakistan Army Act (PAA) and the Constitution. Through 21st Constitutional Amendment, military courts were initially established for two years. Later on, when the two years period expired, it was extended for another two years, through 23rd Constitutional Amendment. These military courts were also given retrospective effect, which empowered it to make trials of the civil suspect arrested or detained under AACPR (since February 2008). The law arbitrarily conferred impunity for the security forces and officials of the law enforcement agencies for their acts done in good faith. And it is now absolutely clear that no legal proceeding can be initiated against them (being protected by law).
On the International Day of the Victims of Enforced Disappearance, we urge the government of Pakistan to implement and enact relevant laws to deter such practices
Suspects who were illegally detained after February 2008 were supposed to be shifted to the internment centres established under AACPR in 2011. It is also important that these internment centres were alleged to be the places where victims of ‘enforced disappearance’ were kept. These suspects who were arrested or detained under AACPR can be tried by military courts established in January 2015.
Pakistan has enacted counter terrorism laws with little tangible effects. It has not only failed to specifically criminalise the ED but has enacted laws and regulations which legalise ED. Through different counter terrorism legislations, it has conferred absolute impunity for the perpetrators of ED. It also failed to investigate ED and till date, even a single perpetrator of ED hasn’t been prosecuted.
Besides that, Pakistan’s superior courts have many times held that any criminal laws which take away rights of the individuals shall not be enforced. Pakistan is also state party of the International Covenant on Civil and Political Rights, article 15 of which says that no one should be charged with an offence which was not a crime according to the law for the time being enforced. Furthermore, the, extension of laws in criminal jurisprudence is considered a violation of international human right law in general and ICCPR in specific. Pakistan has a history of enacting laws retrospectively and legalizing prolonged and indefinite detentions.
Here on the eve of International Day of the Victims of ED, we urge the government of Pakistan to implement and enact laws quickly. Pakistan should take back AACPR, should ratify the International Convention for the Protection of All Persons from Enforced Disappearance, should criminalise ED, should strengthen the Commission of Inquiry on ED to investigate cases of EDs and should also prosecute perpetrators involved in EDs by curtailing their legal and procedural impunity.
The writer is a Peshawar-based lawyer. He tweets at s_irshadahmad. Email: [email protected]
Published in Daily Times, August 30th 2017.