A review of Pakistan’s commission on missing persons

In its monthly progress report for May 2019, the state’s Commission of Inquiry on Enforced Disappearances (CIED) reported that 6,051 cases had been registered before the CIED since March 2011. Out of these, 3,793 cases had been “disposed”, while 2,258 cases were still pending with the Commission.

Significantly, out of the 3,793 cases “disposed” by the CIED, 743 “missing people” were traced in internment centres; 468 people were located in prisons; and 189 people were found dead. The Commission, however, provided no information on steps taken to establish the circumstances behind these detentions or deaths, or place any responsibility on those behind these alleged enforced disappearances.

This is one of the reasons why many victims’ groups – especially from Balochistan – have boycotted the Commission, and other human rights organisations are deeply critical of its work. The UN Human Rights Committee and the UN Working Group on Enforced or Involuntary Disappearances have also expressed concerns about the CIED, including the insufficient resources allocated to the Commission and the non-compliance by law enforcement agencies with the Commission’s binding orders.

The notification establishing the Commission gives it a broad mandate, which includes to “trace the whereabouts of allegedly enforced disappeared persons”, “fix responsibility on individuals or organizations responsible”, and “register or direct the registration of FIRs against named individuals…who were involved either directly or indirectly in the disappearance of an untraced person.”

While the Commission has done well to document cases of enforced disappearances and “trace” the whereabouts of a number of disappeared people, it has completely failed in holding perpetrators accountable.

The Commission’s monthly reports show that even where “missing persons” have eventually been found in internment centres or other detention facilities in the country, the Commission has not “fixed responsibility” on any person or organization or directed the registration of FIRs against those responsible.

This is not surprising, as – curiously - the Commission’s TORs specify that it may direct the registration of FIRs only in the “disappearance” of an “untraced” person. This effectively means that once a person subjected to an enforced disappearance is found, the Commission no longer has the competency to register FIRs against perpetrators. It also ignores the fact that the crime of enforced disappearance does not depend on whether the disappearance is on-going or not – States have the obligation to hold perpetrators accountable even after the “disappeared” person is traced or released.

A related issue is the definition of enforced disappearance used by the CIED, which the Commission’s Regulations define as “such person as has been picked up/taken into custody by any Law Enforcing/Intelligence Agency, working under the civilian or military control, in a manner which is contrary to the provisions of the law.”

Compare this to the definition of enforced disappearance under international law: the “arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups 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 place such a person outside the protection of the law.”

The Commission’s definition is problematic for a number of reasons: it does not recognize secret detention or detention where the whereabouts of the detainee are not disclosed as enforced disappearance; it does not recognize that if deprivation of liberty is not acknowledged or the whereabouts of the detainee are not disclosed, even if this is “legally” mandated, it may still be considered a “disappearance”; and it does not recognize that the “authorization, support or acquiescence of the State” in such detentions may also make them enforced disappearances if other conditions are met.

These omissions are particularly relevant because multiple “legal” regimes in Pakistan effectively legitimize enforced disappearances. A number of people convicted by military courts for terrorism-related offences, for example, were reportedly subjected to enforced disappearance by military authorities as far back as 2009 and kept in secret detention for many years before their military trials. The laws empowering military courts to try terrorism-related offences have retrospective effect, and all arrests or detentions made even before the Army Act was amended in 2015 (and subsequently in 2017) are “deemed” to have been “legally” made under the military’s new powers. The Commission’s narrow definition of enforced disappearance would very likely exclude such people from being considered “disappeared”.

Similarly, the controversial Actions (in Aid of Civil Power) Regulations, 2011, gives the government or “any person” authorized by it sweeping powers of indefinite detention without charge and judicial supervision. It seems unlikely that the Commission would consider such detentions “enforced disappearances” - even where families are not informed about the whereabouts of their loved ones - as AACPR has the force of law.

Even if the Commission recommends registration of FIRs against alleged perpetrators, the Commission’s Regulations are silent as to the specific offence for which they would be charged. Significantly, while the Commission has the mandate to hold perpetrators of “enforced disappearance” responsible, Pakistan’s criminal laws do not currently recognize enforced disappearance as a distinct crime.

This is why enforced disappearances are reported to the police as “missing persons” cases or as those of “abduction”, “kidnapping” or “wrongful confinement”. They do not recognize the gravity of the crime; they do not provide for commensurate penalties; and they do not address the need to remedy the harm to families of those “disappeared” who are not legally considered “victims”.

We should recall that Pakistan has a long history of establishing Commissions of Inquiry to investigate matters of public importance, including allegations of gross human rights violations. Though ostensibly formed to provide a measure of public accountability, COIs have promoted impunity by diverting investigation of human rights violations and crime from the criminal justice process into a parallel ad hoc mechanism vulnerable to political interference and manipulation.

Yet, the tenure of the CIED keeps getting extended, the most recent being in September 2017, when the Commission’s mandate was extended for another three years. This makes the CIED - established initially for only six months in March 2011 - one of the longest-serving public inquiry commissions in Pakistan’s history.

We must reconsider the utility of the CIED. If in eight years it has failed to bring even a single perpetrator of enforced disappearance to account, it is now time a for a more effective mechanism to provide justice to the hundreds, if not thousands, of victims of enforced disappearance in the country.

Omer is a legal adviser for the International Commission of Jurists. She tweets @reema_omer

Note: The views expressed are those of the author, and do not necessarily reflect the official policy or position of Geo News or the Jang Group.