Conspicuous by absence

Federal Minister for Human Rights Shireen Mazari recently told a group of journalists at her ministry that a bill pertaining to enforced disappearances in the country had gone “missing” from the record of the Senate, the upper house of the parliament.

The National Assembly – the lower house of the parliament – on November 8 last year passed the Criminal Law (Amendment) Bill 2021 that aimed at making amendments to the Pakistan Penal Code (PPC) and the Code of Criminal Procedure (CrPC) to curb enforced disappearances.

“We had prepared the bill regarding missing persons and it was passed by a standing committee and the National Assembly. But the proposed legislation went missing after it was sent to the Senate,” the minister said on January 3.

According to some reports, the draft bill went missing from the file of the Senate select committee. The proposed piece of legislation provided for insertion of a new section – 52-B – in the PPC for defining an “enforced disappearance” in the light of the definition set by higher judiciary.

It says: “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 authorization, 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.”

The issue of enforced disappearance emerged in Pakistan in the wake of the September 11, 2001 attacks when the United States and its alliance started a so-called War against Terror by invading Afghanistan and Pakistan became a frontline state in this war.

Incidents of enforced disappearance started taking place in every part of the country including the former Federally Administered Tribal Areas and other parts of Khyber Pakhtunkhwa (K-P).

Later, the epicenter of the alleged disappearance shifted to Balochistan after the start of a low key insurgency in the province following the killing of veteran politician Akbar Bugti in 2006.

Amna Masood Janjua, whose husband had allegedly gone missing from Islamabad, later founded the Defense of Human Rights – an organization dedicated to raising voice for missing persons.

She later took part in the movement for restoration of former chief justice of Pakistan Iftikhar Chaudhry. When Justice Chaudhry was reinstated, he in 2011 formed the Commission of Inquiry on Enforced Disappearances and appointed Justice (retd) Javed Iqbal as its chief.

Justice (retd) Iqbal – the incumbent chief of the National Accountability Bureau (NAB) – still heads the commission which has unfortunately failed in doing much for recovery of the missing people.

The human rights minister, Dr Mazari, has always raised her voice against the phenomenon. In the past, she even participated in the sit-ins staged by Amna Janjua and families of other missing persons.

Before coming into power, Prime Minister Imran Khan also used to call for closing down internment centers mostly established in former Fata and for holding trials of the missing person in open courts.

Interestingly, when the Pakistan Tehreek-e-Insaf (PTI) formed its government in August 2018, Prime Minister Imran Khan nominated Dr Shireen Mazari as his human rights minister. Dr Mazari was the person who worked diligently on the proposed bill against enforced disappearances.

In recent months, the superior courts of the country have issued some strict orders in missing persons’ cases. On January 3, Chief Justice of Pakistan Gulzar Ahmed ordered authorities to present in the court Arif Gul – a man accused of attacking a checkpoint at the Pakistan-Afghanistan border – who had been in detention since 2019.

The chief justice had warned the KP advocate general that if the authorities did not present Arif Gul, the court would summon Prime Minister Imran Khan.

During the hearing of the case on January 5, when the authorities presented Gul in the court Justice Qazi Amin Ahmed noted that the interned person was entitled to the process of law, counseling and access to a counsel of his choice.

Last month, Islamabad High Court (IHC) Chief Justice Athar Minallah had also directed PM Imran to meet the family of a missing blogger, Mudassar Naro, and to assure them that the journalist – who went missing in August 2018 – would return safe and sound.

During hearing of the case on December 14, Justice Minallah noted that the court could not locate a missing person in the absence of a will of the state and that the Commission on Inquiry Enforced Disappearances was unconstitutional as “it is attended by only families that have been assigned a date.”

Talking with reference to the proposed bill with regard to enforced disappearances, the court had noted that Dr Mazari was enacting the legislation but there was no need for such legislation.

“There are thousands of families who are being neglected by the state. There can be no state within a state as no one has been traced to date. It is a direct violation of Article 6 of the Constitution,” he noted.

According to an official who wished not to be identified, many people declared missing by their family members were not whisked away by intelligence agencies. “Many of them have fled the country; are part of militant movements or have hidden themselves on their own to escape justice,” he said.

Another senior official who had been part of Sindh Police said many hardcore terrorists and militants cannot be punished or kept behind bars due to some serious loopholes in the justice system.

Giving the example of notorious gangster Uzair Jan Baloch, who is continually getting acquittal in a number of cases, he said: “Common people usually don’t turn up to give testimonies against such brutal murderers and they are ultimately absolved of all charges to the detriment of the society,” he said.