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SC landmark ruling implicates agencies
Govt ordered to legislate to avert enforced disappearances
 
 
 

ISLAMABAD - Chief Justice Iftikhar Muhammad Chaudhry on Tuesday directed the prime minister, all the chief ministers and the Khyber Pakhtunkhwa governor to recover all the undeclared internees within a week and proceed against those involved in the enforced disappearances.
The court ordered the provincial chief executives to ensure that no enforced disappearances take place in future in their provinces.
The ruling given a day before CJP’s retirement is expected to go a long way in addressing the missing persons’ issue. Hearing human rights case of 35 undeclared detainees, Chief Justice Iftikhar Muhammad Chaudhry held that there was no authority to detain persons illegally. “There is no law or authority to authorise any agency like Military Intelligence (MI), Intelligence Bureau (IB), Inter-Services Intelligence (ISI) and Frontier Constabulary (FC) to detain anyone illegally.”
The order said the police, after filing an FIR could detain a person, but no other agency could detain anyone forcibly without sharing their whereabouts to relatives.
Noting that there was no law for detention in the country except in KPK, the SC ordered proper legislation to control the menace of enforced disappearances. In its short order, the court directed the PM, the CMs and the KPK governor to file the compliance report with the registrar’s office for perusal by the judges.
The court observed the stance of the defence secretary that the missing persons were not into the custody of army proved incorrect. The order read: “We are not in agreement with the Ministry of Defence that the persons were not illegally removed from the interment centre by the army authorities.”
“Prima facie, we can draw a conclusion that all the 35 undeclared internees were taken away by army officials from Malakand Internment Centre.”
The court observed that despite repeated directions since August 5, 2013, even the defence minister was involved and later the prime minister got involved through the defence minister, but the issue of producing the persons as per the list had not been resolved. It said the authorities produced only seven missing persons before Justice Ameer Hani, while the whereabouts of other detainees could only be known to them (the Defence Ministry and agencies).
The court questioned what remedy was left for the relatives of the missing persons running from pillar to post for the last five months.
The order ruled that the prime minister and his cabinet under Article 90 of the Constitution were duty bound to ensure production of these missing persons and also to make sure that all the officers responsible for removing these missing persons from the interment centres be dealt with in accordance with law.
“We are of the opinion that a person who had been confined in the interment centre in Actions (in Aid of Civil Power) Regulations supposedly comes under the control of administration,” read the order.  The court said the regulations were silent as to how the army authorities were authorised to remove the internees without seeking permission and even assigning any reasons.
In the last hearing when the court asked Acting Defence Secretary Maj-Gen (r) Arif Nazir about the forcible removal of these persons from the interment centre, he stated the army had been given powers under Article 245 of the Constitution, adding the army could exercise such powers when there was an internal and external aggression.
The court ruled that enforced disappearances had been considered to be a serious crime all over the world. It noted there were 721 cases of enforced disappearances and asked the attorney general as to whether there was any law empowering the army and law-enforcing agencies to detain any person. The AGP replied that a bill to legislate a law regarding enforced disappearances would be tabled in the current session of the National Assembly.

 
 
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