Daily Times

In the previous month, Justice Athar Minallah of the Islamabad High Court (IHC) authored a landmark judgment in a case related to a “missing person” by the name of Sajid Mehmood. Through this valuable ruling, the court referred to many important questions related to the decade-long issue of enforced disappearances in Pakistan. This country has not yet signed the United Nations (UN) International Convention for the Protection of All Persons from Enforced Disappearances(ICPPED)nor has it specifically criminalised enforced disappearance as a distinct crime, the term “Enforced Disappearance” has been explained as “a person being abducted or taken into custody by one of the law enforcement or intelligence agencies, working under civilian or military control, in a manner which is contrary to the provision of law”.

Contrary to the past, where Pakistan’s superior courts have rarely referred to international human rights law or international jurisprudence, receptively, in this case, the court has not only cited various international human rights instruments but has also reminded the state of its international commitments under the International Covenant on Civil and Political Rights, after being a party to it. Similarly, this excellent verdict emphasises the positive Constitutional obligations of the state to protect fundamental rights and to prevent, investigate enforced disappearances and to punish the perpetrators in accordance with law.

Factually, like other disappearance cases, in this case too, the local police had not registered First Information Reports (FIR), neither were any investigations conducted. During the court proceedings, after the state agencies denied the arrest and disappearance, the Court held”the State through its instrumentalities and functionaries absolutely and exclusively responsible for protecting and safeguarding the fundamental rights, guaranteed under the Constitution to every citizen”.The court also acknowledges that “when a person is subjected to disappearance it is not the only victim but his or her close relatives, particularly their dependents, who suffer the most”.

The IHC’s landmark judgment in the Sajid Mahmood case is an exception and remarkable source of support for Pakistan’s missing persons and their long-suffering families

As enforced disappearance is a heinous crime, it is, therefore, “the constitutional obligation of the State to exercise all options to ensure that the fundamental rights of the people of Pakistan are fully protected and secured particularly relating to the security of their lives”. The court elaborated that “delay in taking action and reasonable steps would not only raise an inference of complicity but would violate the fundamental rights of the person alleged to have been subjected to ‘enforced disappearance’ and also of those close relatives who have to go through anguish, pain and extreme stress. The fundamental rights of the immediate family members, guaranteed under Articles 9, 14 and 25 of the Constitution are equally violated if the response of the State and its functionaries is deficient and not in consonance with the required standard of promptness and effectiveness”.

The judgment says that “disappearance definitely puts a far higher onus to be discharged by the public functionaries in order to establish their bona fides by clearly demonstrating on the basis of strict liability in the context of prompt and effective response and confidence inspiring attitudes. This obligation and onerous duty are undoubtedly fiduciary in nature. In case of breach of this duty, the State and the concerned functionaries definitely would expose themselves to be accountable besides being liable to compensate the affected citizens. They were responsible to protect the citizens from harm without the latter being required to approach them. This onerous duty was imposed upon them while acting on behalf and as representatives of the State”.

The judgment appropriately makes it clear that”onus shall be on the public functionaries to dispel any impression regarding the involvement of the State or its instrumentalities in an alleged abduction. This onus shall be discharged by establishing prompt, responsive and effective investigations. In the event that it is established that the criminal justice system failed in responding promptly, followed by conducting effective investigations into a complaint of a citizen alleging enforced the disappearance of a loved one, then the State depending on the facts and circumstances in each case shall become liable to compensate the person if it can be shown that the latter’s fundamental right(s) stand infringed”.

Lastly, the court in this judgment established the proposition that if “the State and its functionaries fall short in safeguarding the fundamental rights of a citizen guaranteed under the Constitution, then it is an obligation of the State to financially compensate the victim and his or her family. Monthly payment shall be made to the family member of the missing persons till the State through its functionaries traces the whereabouts or fate of the disappeared persons”.

The Court recalled that “upon receiving a complaint of ‘enforced disappearance’, it becomes the State’s duty through its functionaries to promptly and effectively take all reasonable steps. The onus is on the State and its functionaries to unambiguously demonstrate their bona fides through responses, conduct and attitudes, particularly if it is alleged to be a case of enforced disappearance”.

Read more: Finding the “missing”

According to the Commission of Inquiry on Enforced Disappearances, among the 5213 enforced disappearance cases it has successfully disposed of 3,398 cases but there is no data publicly available which could suggest that in how many decided cases the Commission initiated any criminal proceeding against the perpetrators.

The IHC’s landmark judgment in the Sajid Mahmood caseis an exception and remarkable source of support for Pakistan’smissing persons and their long-suffering families. The state of Pakistan, which has repeatedly assured the world at various human rights forums, its “determination to ensure every Pakistani citizen lives in equality, dignity and freedom with complete protection of human rights without discrimination”, should financially compensate all families of the disappeared persons, after falling short to ensure their security and other Constitutional rights.

The writer is a Peshawar-based lawyer. He can be contacted at irshadahmadadvocate@gmail.com and Tweets at @s_irshadahmad

Published in Daily Times, August 11^th 2018.