Daily Times

On March 14, 2016, around a dozen men, some wearing uniforms and some wearing masks, trespassed into a house in Islamabad, they forcibly abducted Sajid Mahmood (the owner of the house) and disappeared. It is pertinent to mention that there is nothing on record to show that Sajid had any enmity or was involved in any illegal activity.

Next day, Mahera (Sajid’s wife) filed a complaint at the police station; however, the police failed to register a First Information Report (FIR); the police’s indifference compelled Sajid’s father to lodge a complaint with the Commission of Inquiry on Enforced Disappearance (CIED). The complaint led to the registration of an FIR and the constitution of a Joint Investigation Team (JIT) comprising the Inspector General Police (IGP) and one person from each intelligence agency. Nonetheless, the attitude of the police and JIT remained overwhelmingly unsympathetic.

Left with no other option, Mahera filed a constitutional petition in the Islamabad High Court (IHC) for the redressal of her grievances. Courtesy the keen interest of IHC, the JIT was pushed to submit a report in the court; the said report, concluded that Sajid’s case is of “enforced disappearance”.

A few days ago, Justice Athar Minallah, whilst deciding Mahera’s petition, rendered a landmark judgement; indisputably, the judgment is Justice Minallah’s chef d’oeuvre which, due to its audacious content and luminous nature, will perpetually reverberate in our jurisprudence. Justice Minallah declared that the acts and omissions of state functionaries have resulted in gross violation of fundamental rights of Sajid and his family. Moreover, he held that it is responsibility of the state authorities to take effective measures in locating the whereabouts of missing persons. The burden is on state authorities to dispel any impression regarding their involvement by establishing their bona fides through a result-oriented conduct. Any non-cooperation or delay, as was the case in Sajid’s abduction, would raise an inference of complicity.

Additionally, the judge adumbrated that state’s negligence and connivance, in cases of enforced disappearances, falls under Anti-Terrorism Act, 1997. The most unusual and brilliant part of the judgment was Justice Minallah’s direction to the state authorities to financially put Mahera in the same position as existed on the day of her husband’s abduction and ordered payment of Rs. 117,500 per month (along with arrears) till Sajid was recovered.

The French, after suffering at the hands of King Louis XVI, introduced protections against enforced disappearance in the Declaration of the Rights of Man and the Citizen 1789. Thereafter, various other countries criminalised enforced disappearances. In 2006, the United Nations also adopted International Convention for the Protection of All Persons from Enforced Disappearance (ICPED), which explicitly bars enforced disappearances. Despite the fact that from 2011 till 2017, a total of 4,608 cases of enforced disappearances were reported in Pakistan (as per CIED data), lamentably, Pakistan has neither ratified ICPED nor introduced any legislation criminalising acts or omissions associated with enforced disappearances. Even the CIED was established on orders of the Supreme Court of Pakistan.

The CJP, being the ultimate guardian of the Constitution in general, and fundamental rights in particular, has to be on the driving seat for adequate and efficacious redressal of grievances of missing persons and their families

In democracy, the rule of law acts as an armour against arbitrary exercise of state power. A vital limb of rule of law is the right to be dealt in accordance with the law and the same is provided in Article 4 of the Constitution of Pakistan. Thus, law enforcement agencies can’t arbitrarily abduct or kill a person on the pretext that he is (purportedly) a dreaded criminal or affiliated with a terrorist organisation. Our Constitution mandates treatment in accordance with the law, hence, the police is bound to arrest the accused and present him in court for commencement of trial. Even otherwise, the idea of extra-judicial adventures is inherently flawed as it is based on unlawful, impulsive and subjective appraisals of guilt, often resulting in innocent causalities.

John Locke in the Second Treatise of Government propounded the theory of private preserve, the theory proposes barriers against outside interference into a person’s private preserve, i.e. fundamental human rights. The Constitution of Pakistan, guarantees various fundamental rights and makes the public functionaries’ exclusively responsible protection and advancement these rights. Unquestionably, every incident of enforced disappearance patently contravenes fundamental rights, including but not limited to, Article 9 (right to security & life), 10 (protection against arbitrary detention), 10-A (right to a fair trial), 13 (protection against self-incrimination), 14 (dignity of a person and privacy) and 25 (equal protection of law).

In view of Justice Minallah’s judgment, CIED data and Supreme Court rulings (of Iftikhar Chaudhary’s era) on enforced disappearances, it is hard to deny state functionaries involvement at some level.

Although, Justice Minallah’s judgement is a glimmer of hope but a lot still needs to be done.

The CJP, being the ultimate guardian of the Constitution in general, and fundamental rights in particular, has to be on the driving seat for adequate and efficacious redressal of grievances of missing persons and their families.

Indubitably, Article 184(3), 187 and 190 of the Constitution confers in the Supreme Court invincible powers to hold any person or institution accountable and pass any order to do complete justice. Fundamental rights are not dead letters, rather vivacious realities, in order to guard and advance them, the apex court has to bring in the ambit of judicial activism, the issue of enforced disappearances.

The writer is a lawyer based in Lahore

Published in Daily Times, July 22^nd 2018.