Women’s Action Forum Karachi’s Letter To The Honourable Chief Justice Of Pakistan Through The Human Rights Cell Of The Supreme Court, On The Recovery Of Missing Bloggers/ Activists And Practice Of Enforced Disappearances.
To:
The Honourable Chief Justice Mian Saqib Nisar,
Chief Justice of Pakistan,
Supreme Court of Pakistan.
January 26, 2017
Honourable Sir,
The Women’s Action Forum – Karachi Chapter, would like to draw your attention to the case of five activists/bloggers who went missing earlier this month, in January 2017, namely: Salman Haider, Waqas Goraya, Asim Saeed, Ahmed Raza Naseer and Samar Abbas. The Ministry of Interior, while denying any involvement in the abductions and saying it is investigating the disappearances, still has no knowledge of their whereabouts. No group has owned up to their abductions, which has led to the widespread belief that their disappearances are part of the rampant practice of enforced disappearances – the arbitrary policy in use by state agencies.
While the immediate and safe recovery of the five bloggers/activists is the most pressing concern, the recent abductions only point to the larger, still unresolved and unaddressed practice of enforced disappearances of activists and citizens by the state.
It was during the tenure of Chief Justice Iftikhar Chaudhry that suo moto powers of the Supreme Court were exercised to probe the issue of missing persons. The Commission of Inquiry on Enforced Disappearance – taking forward the cases that were left pending before an inquiry commission comprising of three superior judges – has been in existence since 2011. Various benches have expressed grave concern through orders in cases before them.
In an order dated 10.12.2013, the Supreme Court (SC) observed that there was no law which allowed for “undeclared internees”. The court gave the following directions: “There must be some legislation to control such like activities and the Federation through Chief Executive must ensure that in future no enforced disappearance takes place.” In its order dated 10.01.2014 on CMA No.8032/2013, the SC observed that the 2013 order had not been complied with.[i]
A private members’ bill in the Senate to regulate the operations of intelligence agencies, namely the Inter-Service Intelligence Agency (Functions, Powers and Regulation) Bill 2012, was tabled in 2012. This was never enacted. There were several attempts to revive it, as recently as in 2016. However, the government has not shown any haste to introduce the bill, which has led the Senate to declare that it would – once again – be introduced as a private members’ bill.
Pakistan is a signatory to the International Convention on Civil and Political Rights. After a visit from the United Nation’s Working Group on Enforced or Involuntary Disappearances (WGEID), Pakistan was asked to ratify the convention on disappearances and criminalisation of enforced disappearances. Pakistan was asked to explain the measures it had taken to address the allegations of the practice of enforced disappearances; steps taken to implement a 2013 Supreme Court judgment; and to provide information on the mandate and functioning of the Commission of Inquiry on Enforced Disappearances. In a 2016 report, WGEID noted that most of the recommendations had not been implemented. Pakistan’s third Universal Periodic Review is due in November 2017.[ii]
The Constitution of Pakistan guarantees certain fundamental rights to its citizens. The practice of enforced disappearances and its repercussions on the person missing and the family violate constitutionally guaranteed rights, in particular, Articles 9, 10, 10A, 14, 15, 16, 17, 19, 19A and 25.
Scores of citizens remain missing to date. Their families have no knowledge of who has taken them, their current whereabouts, or whether they are dead or alive. With respect to the five bloggers/activists, there is no formal charge against them, no record of an arrest, nor have they been produced before any court. With the lapse of the Protection of Pakistan Act, there also exists no provision in law under which the state can detain a person for a prolonged period without producing them before court. Not only is their disappearance a matter of grave concern, but also the deliberate and sustained campaign against them in the media and on social media. Accusations of blasphemy are being leveled against the missing bloggers/activists, as well as those campaigning for their safe recovery, which poses a danger to those missing, their families and the human rights campaigners.
If indeed any of the disappeared have committed a crime, the Constitution and international covenants Pakistan is a signatory to, require that they be dealt with in accordance with law, not through arbitrary policies that create fear and panic in society. The presumption of guilt by a state institution, authority or agency, or through media and social media trials, are a blatant violation of the constitutional rights given to citizens. The crime, if any, can and should only be determined through a formal charge and trial and conviction through court. The trial, must be fair, one in which the rights of the accused are ensured.
We urge:
That the state, its institutions and agencies be held responsible for the recovery of the missing bloggers/activists and inform what the investigation has yielded and what is known about their detention or abduction
That the federation be held answerable for non-compliance of SC orders on the issue of enforced disappearances and provide a clear answer on the enactment of a law to curb this practice and the progress made by the Commission of Inquiry on Enforced Disappearances on pending cases.
Thank you.
Signed: WAF – Karachi
The Women’s Action Forum (WAF) came into being in September 1981, as a pressure group to struggle for women’s rights, at a point in time they were beingseverely compromised. WAF believes that women’s rights are human rights, and that all women must receive the same rights, dignity and equality as other citizens: it has struggled consistently to ensure this for all women. WAF also stands with other civil society organisations to ensure gender equality for women and equal rights for all.
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References
[i] Supreme Court Cases
2012 SCMR 892 SUPREME COURT
“The police or for that matter any other agency had no authority to detain such persons , without showing their arrests in a particular case and obtaining their remands from the court of law. In this view of the matter we set liberty the afore-noted persons and direct DIG (Operations) to take, them safely to their houses so they may not face any difficulty and no, one should cause their arrest in future without informing this court.”
2012 SCMR 754 SUPREME COURT
“Complainant and accused under the Constitution had the right to be dealt with in accordance with law…Presumptions could not be drawn against persons, who had been involved in cases unless evidence was collected—Police authorities as well as the Levies were bound under the law to collect the evidence and finally determine about the guilt or innocence of the persons nominated in the F.I.R.”
H.R.C. No. 29388-K/13
Order dated: 10.01.2014 on CMA No.8032/2013 (Compliance report of order dated 10.12.2013 passed by this Court in HRC No.29388-K/13)
“We have observed in our order dated 10.12.2013 that there is no law which allows for undeclared internees. We had therefore, expressed the view that ”there must be some legislation to control such like activities and the Federation through Chief Executive must ensure that in future no enforced disappearance takes place.” The notification dated 20.12.2013 reproduced above, apart from being irrelevant in terms of the directions of this court dated 10.12.2013, has merely mandated a committee “to discuss the issue in-depth and submit recommendations with timeline” for compliance of our order dated 10.12.2013…. but we may briefly observe that compliance of the order of 10.12.2013 has not been shown in the said “interim reply”…. Furthermore, we have, since July last year, been consistently told that the government is serious in addressing the issue of missing persons and in this behalf legislation is also being made. Regrettably, despite various statements made on behalf of the Federation, even today there is no legislation in respect of enforced disappearances other than the Action (In Aid of Civil Power) Regulations, 2011. These regulations however, do not address the questions which have arisen in relation to missing persons and the enforcement of Fundamental Rights guaranteed, inter alia, by Articles 9 and 10 of the Constitution… We have repeatedly, at least since July last year, been emphasizing to the government that in view of said Articles 9 & 10 of the Constitution, no person can be detained/incarcerated without the backing of a valid law. It has also been emphasized by us from time to time that deviation from the Constitution and law by the government would also constitute violation of Article 5 of the Constitution, quite apart from undermining the authority of the government. In our 5 judgment in the case of Sindh High Court Bar Association Vs. Federation of Pakistan (PLD 2009 SC 879), it was noted that it would “be for the representatives of the people … to determine if the absence of the rule of law within the upper echelons and formal structures of the State has, in a significant way, generated the lawlessness which permeates our society today…”
[ii] “World Focus on Disappearances,” by I.A. Rehman in Dawn, January 19, 2017:
http://www.dawn.com/news/1309275/world-focus-on-disappearances
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