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Apex Pakistani Court Suspends Provincial Ruling Against Forced Disappearances


FILE: Thousands of women, children, and men held up photos, placards, or the national ID cards of their missing family members in Peshawar, Pakistan in April 2018.
FILE: Thousands of women, children, and men held up photos, placards, or the national ID cards of their missing family members in Peshawar, Pakistan in April 2018.

The Pakistani Supreme Court has suspended a ruling by the high court in Khyber Pakhtunkhwa Province that could have led to the release of thousands of victims of forced disappearances and indefinite detentions.

On October 25, Pakistani newspapers reported the Supreme Court in Islamabad suspended an October 17 order by the Peshawar High Court that scrapped the Actions in Aid of Civil Power Ordinance. A larger bench of the Supreme Court is set to hear the case again on November 15.

Pakistani daily Dawn reported that Chief Justice Asif Saeed Khosa declared the case a matter of national importance. Citing the additional advocate general of Khyber Pakhtunkhwa, a government lawyer, the paper reported that Khosa said the apex court would protect the fundamental rights guaranteed by the country’s constitution.

But former lawmaker Afrasiab Khattak argues that the Supreme Court’s order will have the opposite effect. He told RFE/RL’s Gandhara website that the apex court avoided entertaining numerous lawsuits challenging the Actions in Aid of Civil Power law after it was first introduced in 2011 because the law empowers the country’s powerful army to run detention centers in Khyber Pakhtunkhwa, where it carried out its domestic war on terrorism against the Taliban and allied groups.

“Now that the Peshawar high court struck down the black law, the Supreme Court took no time in saving the notorious internment centers by suspending the order of the court,” he said.

Last week, Khattak joined several former lawmakers in challenging the Actions In Aid Of Civil Power in the Supreme Court. He says with its suspension of the Peshawar High Court’s ruling, the Supreme Court appears to have once again invoked the “doctrine of necessity.” During Pakistan’s 72-year history, the apex court has used this principal to validate the actions of military dictators who launched coups and overthrew civilian governments.

The suspension will have an immediate impact on the fate of thousands of people. A copy of the October 17 move by the Peshawar High Court, the apex court in Pakistan's northwestern Khyber Pakhtunkhwa Province, outlined how to handle the thousands of accused held under various versions of the Actions in Aid of Civil Power.

Pakistani and international human rights campaigners have opposed it since it was first implemented in 2011. But it was retroactively implemented from 2008 to provide the Pakistani security forces with legal cover for arbitrary detentions and other abuses committed during security sweeps in the former Federally Administered Tribal Areas (FATA) and Provincial Administered Tribal Areas (PATA). Last year, Islamabad merged the two regions into Khyber Pakhtunkhwa, where the provincial authorities quietly updated the law in August.

Last week, two high court justices determined the Actions in Aid of Civil Power infringed on the constitutional rights of Khyber Pakhtunkhwa’s estimated 35 million residents. The judgement ordered provincial police to seize control of detention centers run by the armed forces.

“He [the inspector general of police] is ordered to release all the internees who have not been charged,” the detailed judgement obtained by RFE/RL Gandhara noted. “All those who have been charged shall be brought before a competent court of law.”

The court ruling highlighted the manner suspects detained under the law were dealt with by the security forces and spy services.

“We have witnessed in a number of missing persons cases that they detained [people] for years and years,” the judgment noted while referring to cases of forced disappearances. “In about 15 to 20 percent cases, suddenly [the detainee] appears before the court and says he has been released by the [intelligence] agencies and on the assurance of not disclosing anything.”

The ruling specifically mentioned the abuse and lack of legal access for detainees despite spending years at military detention centers, locally called internment centers. “They are denied meeting with their families. Nor is any charge communicated to them. Neither is any time given for persecuting them,” the judgement noted.

In recent years, forced disappearances have emerged as a major issue across Pakistan. Members of ethno-nationalist political parties, separatists, Islamists, and even human rights campaigners and bloggers have reportedly been disappeared by the security forces. Most are detained on the suspicion of being engaged in “anti-state” activities, but their cases have hardly made it to open courts. While the authorities have released some victims due to lawsuits or protests, thousands remain missing.

In late September, a government-appointed Commission of Inquiry on Enforced Disappearances said it registered 6,372 cases since its formation in 2011. Local and international rights watchdogs, however, say the number of disappearances is underreported.

The commission claims to have resolved some 4,140 of these cases by tracing victims or determining they were kidnapped or went into hiding because of criminal cases. Some of them are traced to military-run detention camps across Khyber Pakhtunkhwa. In September, the commission traced four victims to internment centers in the province. With 2,679 cases, the province has the highest number of forced disappearances among all four provinces and regions of Pakistan.

Khyber Pakhtunkhwa in general and FATA and PATA in particular became the main theater for Pakistan’s domestic war on terrorism after the demise of the hard-line Taliban regime in neighboring Afghanistan in 2001. By 2003, local Taliban groups emerged in these regions. Allied with the Afghan Taliban, Al-Qaeda, and the Islamic Movement of Uzbekistan, these groups coalesced into an umbrella alliance called Tehreek-e Taliban Pakistan (TTP) or movement of the Pakistan Taliban in 2007.

In 2008, the Pakistani military began large-scale military operations to reverse Taliban control in FATA and PATA. For years, Pakistani and international rights campaigners criticized the Actions In Aid of Civil Power of undermining the human rights of the predominately Pashtun residents of FATA and PATA.

The court verdict acknowledged that the armed forces can be called on to support civilian authorities but noted that Actions in Aid of Civil Power Ordinance “clearly shows a violation of all human rights enshrined in the constitution.” It observed that Pakistanis “under no circumstances can be put to the mercy of the armed forces for an indefinite period, or for investigation, persecution, or trial.”

The military, however, denies engaging in forced disappearances or holding suspects indefinitely. In July, the army formed a special cell at its headquarters to look into cases of forced disappearances.

“Those [individuals] with state are under legal process,” military spokesman Asif Ghafoor said at the time. “There are many who got killed fighting as part of TTP against the state of Pakistan,” he said while reiterating the government positions that authorities are not behind all cases of forced disappearances. “Such individuals are also to be accounted somewhere while listing the missing persons.”