Judiciary And Pakistan’s ‘State Policy’ Of Enforced Disappearances – OpEd

By Nilesh Kunwar

How acute is the chronic malaise of unchecked enforced disappearances afflicting Pakistan can be gauged from the fact that at least eight out of the top ten google search results for “land of enforced disappearances,” directly refers to it. Infact, this despicable phenomenon is so commonplace in Pakistan that ‘disappearing people’ it’s no longer considered a dirty word and doesn’t even seem to offend public sensitivities. A classic example of this is the 2014 discovery of three mass graves [which as per Asian Human Rights Commission [AHRC] contained the remains of 103 humans] by a shepherd near Tootak village of Khuzdar district in restive Balochistan. Advertisement

That there was something seriously amiss is evident from AHRC’s official statement released two days after these mass graves were discovered. It reveals that “Pakistani military forces stopped the local people from unearthing the mass graves and took control of the area. Now, no one is allowed access to the location except military personnel.” However, save the kith and kin of disappeared Balochis, their community members and a handful of rights groups, there was no public outcry against Pakistan army’s unilateral [and legally untenable] decision to conceal the truth by denying media access to this site. 

Subdued public reaction in Pakistan against enforced disappearances isn’t entirely due to apathy, but also because such incidents are summarily brushed under the carpet through the expeditious use of the impressive farce in the form of judicial commissions, as was unambiguously proved in the Khuzdar incident. The judicial commission expectedly gave a clean chit to Pakistan army and its spy agency simply on the grounds that in this case “No one recorded a statement against the army, secret agencies and the government, adding that “They [witnesses] did not accuse them [army and intelligence agencies] of being involved in this heinous crime.”

However, most intriguing is the commission’s finding that “On the contrary, there is enough evidence to suggest that the army, spy agencies and the government were not involved in this incident,” because in its report, there’s just no mention whatsoever of the so-called “enough evidence.” Furthermore, isn’t mentioning that the evidence on record went on to “suggest” and not “conclusively establish” that “the army, spy agencies and the government were not involved in this incident,” a clear admission that the findings of this judicial commission are based on mere assumptions rather than hard facts? 

With judicial commissions brazenly concealing military brutality, people of Pakistan have reconciled and learnt to endure what can’t be cured, and this accounts for their silence on the issue of enforced disappearances. This isn’t an unsubstantiated observation but clearly mentioned in AHRC report [Document ID- AHRC-STM-023-2014], which had called for an impartial inquiry of this incident under UN aegis.

The AHRC supported this demand by stating that “It must be pointed out that the people of Pakistan do not expect any proper and transparent investigation from their government and the security agencies as they themselves are involved in the killings, enforced disappearances and the concealment of the crimes. The importance of a UN report therefore cannot be over emphasised.” Is any further evidence still necessary to establish that enforced disappearances is a state sponsored policy in Pakistan?Advertisement

For those not convinced, here’s another example that illustrates how enforced disappearances are treated as a mundane issue by the Pakistan army. During a press conference on April 19, 2019, senior Pakistani journalist Hamid Mir asked a question regarding enforced disappearances. In reply, the then Director General [DG] of Pakistan’s media wing Inter Services Public Relations [ISPR] Maj Gen Asif Ghafoor on enforced disappearances, said, “We know you have a great attachment to missing persons [issue]. We too have [the same]. We don’t want any person to go missing but when there is a war, you have to do a number of [undesirable] things. It’s said that everything is fair in love and war. War occurs to be ruthless.” Isn’t this a menacing admission a clearcut acceptance of the fact that enforced disappearances have state sponsored sanction? 

Pakistan’s main problem is that with the establishment equating indigenous armed struggles by marginalised groups with conventional war, its ‘deep state’ is shamelessly annihilating its own misguided citizens by treating them as ‘enemies’. Thus, it’s really heartening to know that Islamabad High Court [IHC] Chief Justice [CJ] Athar Minallah has taken due cognisance of this dangerous malady and set into motion the urgently required process of remedying this gross transgression.

The IHC CJ has ruled that “Retired Gen Pervez Musharraf and all other successor chief executives… including the incumbent holder of the office shall submit their respective affidavits explaining why the court may not order proceedings against them for alleged subversion of the Constitution in the context of undeclared tacit approval of the policy regarding enforced disappearances and thus putting national security at risk by allowing the involvement of law enforcement agencies, particularly the armed forces.” The hawks who believe that enforced disappearances are the only cure for ending home-grown secessionist activities may perceive this direction as judicial overreach, but it’s not so.

Noting that “Pervez Musharraf has candidly conceded in his autobiography In the Line of Fire that ‘enforced disappearances’ was an undeclared policy of the state,” Justice Minallah has rightly noted that “the involvement or even a perception of the involvement of the armed forces in acts amounting to violation of human rights and freedom of the citizens weakens and undermines the rule of law.” He has also reminded the fourth estate that it “has a pivotal role in highlighting the unimaginable ordeal and agony of the families of the missing persons, but it appears that they either prefer to ignore the worst form of abuse of state power and violation of fundamental rights, or they do not consider it a priority.

However, whether CJ Minallah is able to curb or even curtail enforced disappearances remains to be seen, and if the past record of Pakistan’s armed forces as regards complying with court orders is any indication, then the chances of any meaningful improvements in this regard are extremely slim. Readers would recall that on Jan 7 this year, IHC had declared the Pakistan Navy Sailing Club built on the Rawal Lake embankment illegal and ordered its demolition in three weeks. Yet, even after four months, this illegal structure is still standing tall- a grim reminder of the fact that the armed forces of Pakistan were, are and will always remain above the law! 

Tailpiece: In wake of the IHC directions on enforced disappearances, the Shebaz Sharif led government has announced that a seven-member committee would deliberate on a policy regarding enforced disappearances in Pakistan. On the face of it, this is a positive step that would help eradicate the despicable trend of enforced disappearances, but once again, if the past is any indication, then there are all the reasons to avoid over-optimism.      

Readers would recall that, while addressing the Standing Committee on Human Rights in January this year, the then then Human Rights Minister Shireen Mazari had revealed that though the missing persons bill had been passed by both the concerned standing committee and National Assembly, “but it went missing after it was sent to the Senate.” So, when a ‘missing persons’ bill can go missing, Islamabad’s grandiose announcement needs to be taken with a rather generous pinch of salt.

Nilesh Kunwar

Nilesh Kunwar is a retired Indian Army Officer who has served in Jammu & Kashmir, Assam, Nagaland and Manipur. He is a ‘Kashmir-Watcher,’ and now after retirement is pursuing his favorite hobby of writing for newspapers, journals and think tanks.