This article aims to highlight the obscurities in the law of enforced disappearances in Pakistan along with the statutory ambiguity in the regulation of affairs by the Commission of Inquiry on Enforced Disappearances (CIED).[1] In the prologue, a distinction will be drawn between the various types of disappearances including abduction,[2] kidnapping and forced disappearance. Following that, the broadness of the definition of “enforced disappearance” given by the CIED will be juxtaposed with the definition laid down in the International Convention for the Protection of All Persons from Enforced Disappearance (ICPPED).[3] Both its literal[4] and purposive[5] interpretations shall be considered in this regard. In this context, the role of the Supreme Court in terms of aspects involving constitutional and human rights will be discussed along with a review of Pakistan’s international legal obligations with respect to a person’s liberty, arbitrary arrest and detention. The epilogue will stipulate the necessary, legitimate and rational legislative reforms required in the law of enforced disappearances in Pakistan and the function of national courts, especially the Supreme Court, in the provision of remedies available under existing laws.
The issue of missing persons has proved to be an overarching problem for Pakistan in the last two decades and this has further been exacerbated by the underdeveloped law in this area. While the Pakistan Penal Code[6] sets forth punishments for all the offences charged in Pakistan, it unfortunately does not redress the severity of forced disappearances through a specific section and instead treats them as part of the more generic crimes of abduction and kidnapping. The underlying difference between the aforementioned disappearances and forced disappearance is that the former could be carried out by any third party, generally for ransom[7] or personal vengeance,[8] without having acquiescence, support, association or linkage with the state, whereas the latter crime is often committed by security/ intelligence agencies[9] in light of the detainee being an alleged threat to national security. This reflects an uncertainty within the PPC which demands the need for explicit legislation in order to avoid such a façade.
In 2011, a commission was formed by the Ministry of Interior on the directions of the Supreme Court of Pakistan to address and curb the prevailing concern of missing persons. The commission defined a missing person in the following words:
“…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.”[10]
This definition prima facie does not depict the grave nature of the act as it does not include the essential element of ‘deprivation of liberty’[11] which is inevitable in the cases of forced abduction.
Upon a literal interpretation of the aforementioned definition, the words “picked up/ taken into custody” could be construed sketchily as they can include detainment, arrest, abduction, kidnapping, apprehension, confinement or even imprisonment. Article 9[12] of the Constitution of Pakistan embodies the essence of the right of an individual to his or her liberty, therefore, if any person is unlawfully held hostage, falling within the ambit of custody as stated above, without being informed of the charge or cause of arrest against him or her, then it would lead to a breach of his or her constitutional right.
Similarly, the phrase “any law enforcing/intelligence agency” impliedly covers almost all institutions due to the vague terminology. Moreover, in cases involving taking custody, the “control” of the state over a law enforcing agency is not the only prerequisite, rather authorization, approval or consent for the act are also the needed in certain scenarios.
The last part of the definition holds all acts “contrary to the provisions of the law” as valid grounds for custody, hence, would extend the liability of an individual to acts that are neither a threat to public nor national security but would still fall under the definition making it incomprehensibly wide.
As an inadvertent result of these omissions, the definition would cause multiple illegal regimes in Pakistan to effectively legitimize enforced disappearances.
For purposive interpretation, the intent of the legislating body needs to be understood, which was to curtail the implications faced by individuals in cases of enforced disappearances. However, it is crucial to understand that whilst applying such an approach, the court should ‘not transgress the object and scope of the statute’[13] and ‘amplitude must be given conforming to the real spirits of the right’.[14]
Contrarily, the definition of enforced disappearance given by ICPPED[15] is absolute, legally coherent and consistent with the norms of legal practice as it endorses the upholding of fundamental rights and maintains the autonomy of an individual. It takes into account the factors behind the concealment of the fate or whereabouts of a disappeared person as fundamental to fall within the realm of a missing person’s case, confirming this definition to be legally mandated as these elements differentiate an ordinary abduction for ransom from an enforced disappearance. Hence, the literal as well as the purposive interpretation of this definition will bear the same transparent and fair results.
The Supreme Court has taken a proactive approach to deal with the issue of missing persons and has taken suo moto action[16] where it has held the constitutional petition for involuntary disappearance to be maintainable[17] under section 184(3) of the Constitution, as it suffices to be a matter of public importance with a violation of fundamental rights involved as per Chapter I of Part II. The recklessness in the drafting of the commission’s definition purports to violate Article 10 of the Constitution, which contours the safeguard of a person with regard to arrest and detention, consequently affecting due process of law.[18] These uncertainties in the law are further aggravated by Pakistan not being a party to the ICPPED which is the fundamental Convention in relation to the protection of involuntary disappearances. This Convention addresses all the crucial aspects of this crime; the duty of state parties to criminalize the offence,[19] the accountability of the perpetrators and abettors,[20] the complaint and investigation procedure[21]and the right to obtain compensation and reparation[22], among other facets. All these features distinguish the functionality of this Convention from other legal conventions and statutes in providing effective protection to essential human rights i.e. the right to liberty and prevention from unlawful arrest and illegal detention.
Taking into consideration the importance of these civil and constitutional liberties attached to the crime of enforced disappearance, the notion has been given the status of jus cogens[23] and categorized as a peremptory norm[24] under international law. If we follow this line of reasoning, then all states are obliged to protect their citizens from enforced disappearances regardless of whether or not the state has ratified the Convention. In the alternative, it can also be contended that forced disappearances are crimes against humanity,[25] constituting a rule of customary international law,[26] therefore, putting states under an international obligation to prohibit such crimes. The Supreme Court of Pakistan upheld this argument in a suo moto case[27] stating that despite Pakistan not being a signatory to the ICPPED, the court could apply the provisions of the Convention in order to achieve the ends of justice.
In order to restrain the crime of enforced disappearance within the existing legal framework, a better mechanism needs to be devised by the legislative and administrative bodies. The Code of Criminal Procedure (CrPC)[28] gives powers to private persons[29] (undefined in the Code) to arrest any person who in their view has committed a non-bailable and cognizable offence and hand him or her over to the police. The section could be amended and the phrase ‘private persons’ could be replaced with ‘any other law enforcing agency other than the police’ in order to achieve more certainty and provide at least a minimal level of protection to missing persons. The CrPC also disallows the detainment of a person by the police for more than twenty-four hours[30] if it is carried out without a warrant.[31] Therefore, the aforementioned sections endorse the intent of the legislature to provide a legal mandate of arrest only to the police. This view was also reinforced in Aamir Bashir vs State[32] where the apex court stated that cognizance and control of an investigation by the Inter-Services Intelligence was neither authorized nor mandated by law and was done illegally without lawful authority. The court emphasized that such an action should not be repeated in future. Similarly, in a human rights case, the Supreme Court of Pakistan endorsed that there must be some legislation in the country to control the unauthorized detention of persons.[33]
The Prime Minister of Pakistan has recently approved the draft to criminalize enforced disappearances under the PPC,[34] but until its enactment and Pakistan’s signing of the ICPPED, it is the responsibility of the courts to tackle the issue under the ambit of article 184(3) and 199 of the Constitution to ensure the enforcement of fundamental rights conferred upon citizens by Chapter 1 of Part II, covering unlawful arrest and illegal detention by guaranteeing the right to a fair trial.[35] This way, the rule of law can also be upheld and the autonomy of institutions with a definitive separation of powers can be maintained as well.
References
[1] Hereinafter referred as, CIED
[2] S.365 PPC 1860 states that if any person kidnaps or abduct someone with intent to cause that person to be secretly or wrongfully confined shall be punished with imprisonment of either description defined under s.359 and s.360 respectively.
[3] Hereinafter referred as, ICPPED; an instrument which was designed by UN General Assembly, to prevent enforced disappearances, established by the Commission on Human Rights.
[4] 2012 PLD 923 SC – Literal interpretation of the Constitution and statutes was that the words and phrases used therein should be read keeping in view their plain meaning.
[5] 2018 SCMR 1885 SC – Interpretation which advanced the purpose of the ‘Act’ was to be preferred rather than an interpretation which defeated its objects.
[6] Hereinafter referred as, PPC
[7] 2020 YLR 212 LHC
[8] 2017 PCrLJN 112 LHC
[9] 2018 CLC 1858 Islamabad
[10] Cases of kidnapping for ransom, personal enmity or people who leave on their own don’t fall within the ambit of this definition.
[11] ICRC Database: Rule 99, Volume II, Chapter 32, Section L of Customary IHL.
[12] “No person shall be deprived of life or liberty; save in accordance with law.”
[13] 2018 PLD 372 Islamabad
[14] 2009 YLR 2000 SHC
[15] “enforced disappearance” is considered to be 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.
[16] Report of the Working Group on Enforced or Involuntary Disappearances, UN Doc A/HRC/22/45/Add.2 , 2013, p. 8
[17] 2012 SCMR 1958 SC
[18] 2019 SCMR 1982 SC
[19] Article 4 of ICPPED
[20] Ibid, Article 6
[21] Ibid, Article 12
[22] Ibid, Article 24
[23] Article 53 of the Vienna Convention on the Law of Treaties 1969; (Orakhelashvili, 2006, p. 50) “Jus cogens norms are norms that are so morally deplorable as to be considered absolutely unacceptable by the international community as a whole.”
[24] “Peremptory” is defined as: “Imperative; final; decisive; absolute; conclusive; positive; not admitting of question, delay, reconsideration or of any alternative. Self-determined; arbitrary; not requiring any cause to be shown.” Black’s Law Dictionary (Sixth Edition, 1990), p.1136.
[25] Article 7 of the Rome Statute 1998
[26] “…a belief that this practice is rendered obligatory by the existence of a rule requiring it … The States concerned must feel that they are conforming to what amounts to a legal obligation.” (North Sea Continental Shelf cases, ICJ Reps, 1969, p. 3 at 44)
[27] 2014 PLD 305 SC
[28] Code of Criminal Procedure, 1898, hereinafter referred as, CrPC
[29] S. 59 CrPC 1898
[30] Ibid, s.61
[31] Ibid, s.167
[32] 2017 SCMR 2060
[33] n (27)
[34] https://tribune.com.pk/story/1899507/pm-approves-amendments-declare-enforced-disappearances-criminal-offence
[35] Article 10-A of the Constitution
The views expressed in this article are those of the author and do not necessarily represent the views of CourtingTheLaw.com or any organization with which he might be associated.
