Pakistan: Why Enforced Disappearances Go Unpunished

Islamabad High Court [IHC] Chief Justice Athar Minallah’s directions that the Federal Government should serve notices on General Pervez Musharraf and all other “successor Chief Executives” [former Prime Ministers] to explain why legal proceedings should not be initiated against them for alleged “subversion of the Constitution” through “undeclared tacit approval of the policy regarding enforced disappearances,” is indeed praise worthy. Yet, despite Chief Justice [CJ] Minallah’s well-meaning and determined legal crusade against the rampant scourge of enforced disappearances in Pakistan, to expect that this repulsive trend would now become extinct, may well turn out to be a case of gross overoptimism.

In democracies, the ultimate responsibility for actions of the various organs of state rests on the elected government and hence, holding those who served as ‘chief executives’ and prime ministers responsible for their failure to prevent enforced disappearances, is perfectly in order. However, those heading the organ responsible for this horrific crime against humanity too have a constitutional responsibility in ensuring that their respective departments function efficiently and remain within the ambit of law.

Unfortunately, due the legislature being firmly under the army’s control, Pakistan isn’t exactly what a democracy should be. Consequently, prime ministers sitting in Islamabad have just no control over the Generals in Rawalpindi whose officers and soldiers are unabashedly following the barbaric strategy of using enforced disappearances as a tool to terrorise into submission, marginalised and persecuted communities, compelled to pick up guns against the state. So, making prime ministers the sole fall-guys as far as enforced disappearances are concerned may not be fair.

In his court order, IHC CJ Minallah has justified this action by stating that the government’s “undeclared tacit approval” of enforced disappearances is tantamount to “high treason” as it was “putting national security at risk by allowing the involvement of law enforcing agencies, particularly the Armed Forces.” While legal experts may be in a better position to analyse and comment on this issue, but for a layman, this court order seems to have summarily absolved the army’s top brass of any culpability in this case.

It’s no secret that the Pakistan army [alongwith intelligence agencies and paramilitary forces under its command] is brazenly orchestrating enforced disappearances by its own volition and without any reference to, or sanction from, the government. So, isn’t it strange that even when prime ministers have neither any direct/ indirect role, nor the knowledge of such acts, they would still be held responsible for enforced disappearances?

In his court orders, the IHC CJ has accepted the “involvement of law enforcing agencies, particularly the Armed Forces,” in enforced disappearances. Hence, alongwith the prime ministers, who on account of being the functional heads of the government, shouldn’t army chiefs who too are responsible for the unsoldierly-conduct of armed forces, para militaries and intelligence agencies they command also come under the accountability purview?

This is why CJ Minallah’s failure in directing the Federal Government to seek an explanation from Pakistan army chiefs as to why legal proceedings should not be initiated against them for enforced disappearances, is to say the least, inexplicable. Furthermore, doesn’t such a palpably subjective approach further reinforce IHC judge Justice Shaukat Aziz Siddiqui’s admission before the Rawalpindi Bar Association in 2018 that “Today the judiciary and media have come in the control of ‘Bandookwala’ [army] and that “In different cases, the ISI forms benches of its choice to get desired results”?

The Pakistan army itself doesn’t seem to have any qualms in admitting involvement of its rank and file in enforced disappearances. In 2019, while answering a question on this very issue, the then former Director General [DG] of Pakistan army’s media wing Inter Services Public Relations [ISPR] Maj Gen Asif Ghafoor officially acknowledged the army’s complicity in orchestrating enforced disappearances in Pakistan by saying “We don’t want any person to go missing but where there is a war, you have to do a number of [undesirable] things.”

Infact, airing Pakistan army’s collective view of being above the law, the DGISPR had the gall to justify enforced disappearances by saying, “It is said that everything is fair in love and war. War occurs to be ruthless”! Yet, for reasons unknown, the otherwise proactive judiciary in Pakistan failed to take suo moto cognisance of the army’s official spokesperson’s incriminating admissions regarding enforced disappearances.

Could this be a possible manifestation of Justice Siddiqui’s assertion that Pakistan’s judiciary is being controlled by “bandookwallas”?

Readers may recall that Rawalpindi took umbrage to Justice Siddiqui’s accusations of judicial interference levelled against the Pakistan army [in general] and ISI [in particular]. DGISPR issued a statement criticising the comments made by the IHC Justice and informing everyone that “honourable Supreme Court of Pakistan [SPC] has been requested [ by Pakistan army] to initiate appropriate process to ascertain the veracity of the allegations and take actions accordingly.”

What investigations were carried out by SCP with respect to Justice Siddiqui’s claims, or its findings of whether his allegations are true or false haven’t been made public. However, it would be logical to assume that if found guilty, then SCP should have proceeded against him to “safeguard the sanctity and credibility of the state institutions,” [as requested by the Pakistan army]. However, if Justice Siddiqui’s assertion were credible, then he should have been allowed to continue in office after being privately counselled by the Chief Justice of Pakistan to be more discreet while commenting on any military related issues.

However, neither happened. Instead, in a surprising move, Supreme Judicial Council of Pakistan recommended Justice Siddiqui’s removal from office for “displaying a conduct unbecoming of a judge” [without providing any further details to justify this decision], and the President of Pakistan unquestioningly and promptly accepted the same. So, expressing scepticism on the outcome of IHC CJ Minallah’s initiative to rid Pakistan of the enforced menace, isn’t being pessimistic- it’s being realistic, because at the end of the day, one thing is certain- in Pakistan, it doesn’t pay to mess around with the army.

And if you still don’t believe me, ask former prime ministers Nawaz Sharif and Imran Khan Niazi!