Dr. Shireen Mazari’s recent decision to attend a protest against enforced disappearances should be viewed as a welcome indication of change on the horizon. Two parallel legislative developments, the tabling of a bill to make us compliant with the International Convention Against Torture and the expected introduction of a Bill in the Senate for criminalising enforced disappearances should also, together, draw us closer to realizing a Pakistan where extreme human rights abuses are no longer tolerated.
In reference to the proposed criminalization of Enforced Disappearances, Pakistan should attend not only to the criteria outlined in the International Convention on the Protection of All Persons Against Enforced Disappearances (ICPPED) but also the record of other countries who have sought to close off official impunity for such acts. While enforced disappearances entered the lexicon of offence against human rights relatively recently, it is worthwhile to note that the practices of unlawful arbitrary detention were barred when the Habeas Corpus writ was contrived in Britain, centuries ago.
In colonial India, section 491 of the Code of Criminal Procedure, extended the writ’s availability to; “a person illegally or improperly detained in public or private custody.” In Pakistan, in spite of these and supplementary measures such as the introduction of fundamental rights to fair trial, against arbitrary arrest and right to life, the practice is painfully a growing part of our landscape.
At least a part of the reason why the practice of enforced disappearance continues to take place in spite of widespread acknowledgement, of it as violation of human rights is indicated by the paradox of the writ of habeas corpus. The writ leaves room for the bounds of legitimate government action to be redefined by the judge in power. With the extensive and acknowledged limitations to individual rights, state powers require greater legislative intermediation so as to empower judges to also ensure strict compliance.
During the Nazi reign of terror, enforced disappearances were one part of the genocidal machine. From the 1960’s through to the 1980’s, the practice had a particularly inglorious run from Guatemala to Chile and Argentina. The Mothers of the Plaza de Mayo became the heart-wrenching global symbol of the suffering that accompanies the disappearance of loved ones. Enforced disappearances continue to occur with great regularity in areas of conflict, including Syria. The most recent country to criminalise enforced disappearances is Sri Lanka in 2018, where internecine warfare has relatively come to an end.
While the Islamabad High Court has shown a willingness to calculate and award adequate compensation over the course of a disappearance; additional accommodation must also be made for mental turmoil and ‘restoration of dignity and reputation’ as enunciated in the ICPPED
What is clear from the ICPPED, is that “No exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification for enforced disappearances”. The ICPPED goes on to provide the apparatus for criminalisation by defining the crime as the “arrest, detention, abduction or any other form of deprivation of liberty” with concealment of the place of detention and a relegation of the affected person to a status outside the protection of law”; a nexus must be drawn between an enforced disappearance and the involvement or acquiescence of the state. Moreover it is necessary to establish requisite penalties for such actions; that are commensurate with their extreme gravity. In Sri Lanka for instance, the penalty includes imprisonment for up to twenty years and a sizeable financial penalty. Furthermore, the statute of limitations for criminal proceedings must be reflective of the continuous nature of the offence of enforced disappearance.
Importantly, the definition of ‘victim’ of an enforced disappearance in Article 24 is ‘the disappeared person and any individual who has suffered harm as the direct result of an enforced disappearance.’ This draws attention to the need to address the hardships suffered by victims and their families. The ICPPED provides that relatives be able to “know the truth regarding the circumstances of the enforced disappearance.” This requirement is reflected in the judgment of the Supreme Court of Pakistan in Human Rights Case No. 29388-K OF 2013 where it held that “no law enforcing agency can forcibly detain a person without showing his whereabouts to his relatives for a long period.”
The Ministry of Human Rights, in Iraq maintains a database on victims of enforced disappearances. The Committee on Enforced Disappearances is the body responsible for the implementation of the ICPPED among state parties. It has further recommended the addition of information such as gender, age, religious affiliation, time and place of disappearance on such a register.
Given that the majority of persons subject to enforced disappearances tend to be men, of an age that they are likely to be the primary breadwinners of a family, a thorough attempt at redressing the family’s financial hardship needs also to be considered. In Colombia, legislation was passed establishing a procedure to declare a person ‘missing as a result of enforced disappearance’ which may be deemed as sufficient cause to allow families to access the bank accounts or assets of the forcibly disappeared person. While the Islamabad High Court has shown a willingness to calculate and award adequate compensation over the course of a disappearance; additional accommodation must also be made for mental turmoil and ‘restoration of dignity and reputation’ as enunciated in the ICPPED.
Notably, the ICPPED envisages a separate category of persons in addition to families of the disappeared as victims. These are those advocating on behalf of the disappeared, who also thereby need protection. An important reinforcement by the Committee that Pakistan may consider, is particularly the need to ensure that State agents avoid making comments publicly ‘that could discredit, stigmatise or endanger the relatives of disappeared persons or human rights defenders working to combat enforced disappearances and to assist victims.’ In the same vein, heed must also be paid to the risk of intimidatory tactics being used against relatives and supporters of disappeared persons.
The Naya Pakistan government has promised change at a grand level, and criminalising enforced disappearances, will most certainly bolster the government’s claimed commitment to human rights in Pakistan.
The writers are Bertha Justice Fellows at Foundation for Fundamental Rights (FFR), Islamabad and can be emailed at [email protected] and [email protected]
Published in Daily Times, September 16th 2018.