Law related to
missing persons gone
missing in Pakistan;
lawmakers told in NA

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Commission on missing persons has become a liability and failed to justify its existence; says IHC Chief Justice Athar Minhallah

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ISLAMABAD: A meeting of the Senate Standing Committee on Human Rights was informed on Wednesday that the bill pertaining to enforced disappearances was still not found and continued to remain “missing”.

The bill, Criminal Law (Amendment) Bill 2021, was passed by the National Assembly (NA) on November 8, 2021, and is aimed at making amendments to the Pakistan Penal Code (PPC) and Code of Criminal Procedure. In January, former human rights minister Shireen Mazari had revealed that the bill had gone missing after it was sent to the Senate, having been passed by the relevant standing committee and the NA, the Dawn has reported.

Last month, Mazari claimed that she was asked to appear at the Inter-Services Intelligence (ISI) headquarters over the bill. She went on to say that after the bill was tabled in the NA, it was referred to the interior committee where “invisible shadows” tried to change the clauses. She had regretted that the bill “disappeared” on the way to the Senate.

The bill’s mysterious disappearance came under discussion during a session of the standing committee on Wednesday.

“Where is the missing persons bill? It should be revealed that who made the bill disappear,” said PML-N Senator Mushahid Hussain.

PTI Senator Walid Iqbal, the committee chairman, reiterated what Mazari had said earlier this year, adding that the bill had disappeared when it reached the Senate Secretariat.

“So this means the missing persons bill has [itself] gone missing,” remarked another PML-N Senator Irfan Siddiqui.

The new human rights secretary briefed the committee members and said the Ministry of Interior and Ministry of Parliamentary Affairs were asked to take up the issue with the secretariat. “Both the ministries have been asked to trace the bill on missing persons,” the secretary said.

Missing persons bill

The bill was introduced in the National Assembly by the then interior minister in June 2021. While initially there was no provision related to the filing of a false complaint or false information about subjecting a person to enforced disappearance, subsequently a provision was added to the bill to declare it a penal offence punishable by up to five years imprisonment with a fine up to Rs500,000.

Islamabad High Court Chief Justice Athar Minallah

The proposed law provides for the insertion of a new section 52B in the PPC for defining an “enforced disappearance”.

It states: “The term enforced disappearance relates to illegal and without lawful authority arrest, detention, abduction or any other form of deprivation of liberty by an agent of the State or by person or group of persons acting with the authorisation, 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 places such a person outside the protection of the law.”

Enactment of law for criminalising “enforced disappearance” in Pakistan is a long-standing demand of human rights bodies, especially Amnesty International and the Human Rights Commission of Pakistan.

Enforced disappearances, which began several years ago in the backwaters of Balochistan and erstwhile Fata on the pretext of fighting terrorists and insurgents, have extended to major urban centres, including Islamabad, over the years.

The Commission of Inquiry on Enforced Disappearances, established in March 2011, has managed to trace many of those missing, but activists claim it has failed in the second part of its mandate, that is, to identify and prosecute those perpetrating these abductions. Some rights activists estimate there still remain over 2,000 unresolved cases with the commission.

Missing persons commission

The Islamabad High Court (IHC) has observed that the missing persons commission headed by retired Justice Javed Iqbal has become a liability and failed to justify its existence.

The Commission of Inquiry on Enforced Disappearances was established in 2011 and Justice Iqbal has been heading it since then.

A recent picture shows women hold portraits of their missing family members during their sit-in protest, in Islamabad, Pakistan. (Picture Anjum Naveed)

It was formed to trace the missing persons and fix responsibility on the individuals or organisations responsible for it. As per a recent report of the commission, only one third of the missing persons have returned homes since 2011.

IHC Chief Justice Athar Minallah issued an order in the missing persons case that stated: “When there is sufficient evidence to conclude that it is, prima facie, a case of ‘enforced disappearance’ then it becomes an obligation of the State and all its organs to trace the disappeared citizen. This obligation will remain effective and perpetual till the victim has been traced or credible information gathered through effective investigation regarding his/her fate.”

The court order added: “It becomes a constitutional obligation of each organ of the State to hold those public functionaries accountable who are responsible and who have failed in their duty to protect and trace the citizen who has gone missing” adding: “Nothing has been placed on record to show that the Commission has even remotely made an attempt to hold public officeholders accountable for failing to comply with the production orders.

Nasrullah Baloch, centre bottom, leader of the Voice of Baloch Missing Persons, speaks while people hold placards and portraits of their missing family members during a news conference in Islamabad. (Picture Anjum Naveed)

“The Court, after perusal of the report, is, prima facie, of the opinion that the Commission has failed in its duty nor can it justify its existence in the circumstances.”

Justice Minallah observed that the commission was constituted almost a decade ago and its main responsibility was to recommend to the federal government proposals to bring an end to the impunity against ‘enforced disappearances.’

“It has become obvious by now that it has not been able to effectively achieve its object. The commission is a burden on the exchequer and it ought to justify its continued existence.”

The court directed the commission to explain “why no action has been taken nor recommendations made to the federal government so as to hold those public functionaries accountable who have failed to comply with its production orders.”

It has been consistently noted that the proceedings before the commission are not of adversarial nature. The commission has to demonstrably show utmost empathy towards the petitioners and all other loved ones of missing citizens. It is the duty of the commission to reach out to them and through its conduct assure them that the proceedings are not a mere formality nor an eyewash.

The IHC chief justice expressed the hope that the commission may inform the court why meaningful and effective actions had not been taken nor recommendations made to the federal government to proceed against the public functionaries who failed to comply with the production orders.