Tracing the disappeared - I.A Rehman - January 20, 2011

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THE report of the judicial commission set up last year to probe cases of involuntary disappearances has not been officially released. But the extracts from it carried by the media contain enough evidence of gross abuse of power by the intelligence and law-enforcing agencies that no modern government can choose to ignore.

Much of what the families of victims and their defenders have been complaining of has been vindicated and the government stands indicted for being utterly insensitive about the citizens` most fundamental rights.

The commission has confirmed that the intelligence agencies have been picking up their victims and that in some cases they have been assisted by the local police/Elite Force “which was obviously beyond their scope of duties”. In many cases senior police officers knew of the arrest and detention of `missing persons` by intelligence agencies but they failed to admit this before the commission/courts. In a few cases the police officers were found guilty of “intellectual dishonesty by registering fake FIRs against the persons picked up by the intelligence agencies and handed over to the police after a long time”.

The commission has also taken serious exception to the “uncivilised method adopted by the police and agencies` personnel for arresting the victims”, and not allowing the detainees any contact with families during long periods of detention. The intelligence agencies have also been censured for issuing stereotyped denials of responsibility even in the face of strong evidence. While some of the cases of enforced disappearance were solved with the help of intelligence agencies, “all in all their cooperation remained lukewarm and not up to our expectation”, the commission is quoted as saying.

An extraordinarily distressing disclosure made by the commission is the fact that the incidents of enforced disappearance have not stopped. When the commission was set up in April 2010 its task was to trace 189 `missing` persons and during the next eight months another 203 people were reported to have disappeared. There is reason to believe that the count of the involuntarily disappeared persons is still incomplete.

Nobody can possibly disagree with the commission when it says: “In order to put an end to the issue of enforced disappearances/missing persons, the intelligence agencies should be restrained from arbitrarily arresting and detaining anyone without due process of law. Generally, it would be appropriate if the government evolves a mechanism for intelligence agencies to share information and leave it to the police to make arrest and proceed under the relevant law”.

No further proof is needed that people have been and are being arrested by unauthorised functionaries in violation of due process, that they are detained at unauthorised places, and that a regime of fear has been established.

The remedial measures suggested by the commission are mostly unexceptionable. No one must be arrested or detained in violation of due process and if fresh legislation is needed to meet this basic requisite of the rule of law this should be done without any delay. The commission has conceded the possibility that in extraordinary situations compliance with legal procedures may not immediately be possible, but this should not become an excuse to turn an exception into a rule. And even for such situations legal mechanisms should be in place and these special procedures should come into play as soon after an arrest as possible.

The commission`s plea for reining in all intelligence agencies sums up a great deal that has been said on the subject and also what has been left unsaid. The extra-constitutional and extra-legal autonomy exercised by these agencies has not only caused suffering to a large number of citizens, it has also caused incalculable harm to democracy. A serious effort to regulate the working of the intelligence agencies — civil as well as military — should be high on the national agenda.

Each agency should be organised under a publicly known law which must not only define the powers and obligations of its staff but also provide for prevention of and redress for abuse of authority. As pointed out by the commission this will be in the agencies` own interest. However, there can be no two opinions on the victims` right to compensation and this recommendation ought to be implemented forthwith. This is an opportune moment for the government to sign the UN convention on the protection of people against enforced disappearance and keep its provisions in mind while drafting new legislation.

The suggestion for the appointment of a commissioner to deal with cases of enforced disappearance needs elaboration. That the families of victims of arbitrary arrest and detention need help even to get their complaints registered cannot be denied. But why cannot the police and the other executive paraphernalia attend to these matters as required under the Code of Criminal Procedure?

Since the commission was only required to help trace the `missing` persons, it has not taken note of the reappearance of some of them in the form of dead bodies. A high-powered judicial probe into these gory incidents must not be delayed. The commission`s findings should help the government in comprehending the gravity of the situation created by enforced disappearances and its inability to deal with it. The victims and their families in all provinces have been subjected to the most horrible forms of anxiety and torture. But the situation in Balochistan is especially critical. There involuntary disappearances have been viewed as part of a systemic design to suppress the people`s legitimate aspirations to control their resources and manage their affairs.

Obviously, in addition to establishing a lawful regime for dealing with those suspected of terrorist acts or other anti-state crimes, it is necessary to reach out to the people of Balochistan with a wide-ranging plan for their political accommodation and full respect for their rights.

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