ihcThe Islamabad High Court (IHC) Sunday directed the federal government to serve notices to ex-president Pervaiz Musharraf and all other successors – the former prime ministers, including the incumbent holder of the office – in cases of missing persons.
IHC Chief Justice Athar Minallah has issued 15-page order in a case relating to the disappearance of journalist Muadassir Naro and five other people after their petitions were fixed for final arguments, but the federal government requested an adjournment.
The court noted that not only nationals, but even non-Pakistani citizens enjoy the fundamental right of security and protection of life. However, the reports submitted on behalf of the Commission of Inquiry on Enforced Disappearances manifest that the phenomenon of enforced disappearances not only exists but the impunity is to such an extent that no one has ever been held accountable, the order noted.
“It has, prima facie, become obvious that the Commission, rather than achieving its object, has become a forum which contributes toward making the agony and pain of the victims more profound. Its proceedings seem to have become a mere formality and its adversarial nature undermines and violates the dignity of the loved ones,” it mentioned.
Moreover, the court observed in its order that it is alarming that the federal government does not seem to have maintained the record and report of the earlier commission – headed by Justice (retd) Kamal Mansoor Alam. The report and recommendations of the Federal Task Force on Missing Persons also seem to have fallen on deaf ears, it noted. “In a nutshell, while the existence of the grave phenomenon of ‘enforced disappearance’ and impunity against it has never been denied, the federal government has so far failed to dispel the impression that it is an undeclared policy of the state.”
The order said the existence of the phenomenon of “enforced disappearances” is intolerable and, more so, when overwhelming evidence manifests that it has remained and continues to be an “undeclared tacit policy of the state”.
On the involvement of the armed forces in such cases, the court observed they cannot, under the Constitution, act on their own and it was the federal government’s responsibility to oversee them. “It is the duty of the federal government, i.e the prime minister and members of the cabinet, to ensure that the constitutional scheme is not violated,” the order said.
“The buck stops with the federal government and it is solely to be held accountable for any subversive act or omission of the Armed Forces,” the court added.
Moving on to the former president general (r) Pervez Musharraf – who ruled the country from – 1999 to 2008 – the court noted that he had candidly referred to enforced disappearance as an undeclared policy of the state.
“It is an undeniable fact that General (retd) Pervaiz Musharraf, who had taken over the reins of power after abrogating the Constitution and, thereafter, had ruled the country as its chief executive for almost a decade, has candidly conceded in his autobiography ‘In the Line of Fire’ that ‘enforced disappearances’ was an undeclared policy of the State,” the order observed.
The federal government shall produce the missing persons before the court on the date fixed or justify the failure of the state to effectively investigate and trace their whereabouts, the court told the attorney-general in the order. The order said once the government issues notice to the chief executives, including Musharraf, they should submit their respective affidavits.
In the affidavits, the court said, they should explain why the court should not order proceedings against them for alleged subversion of the Constitution in the context of the undeclared tacit approval of the policy regarding enforced disappearances.
“The onus is on each chief executive to rebut the presumption and to explain why they may not be tried for the offence of high treason,” it said.
In case the missing persons are not recovered nor effective and demonstrable actions are taken by the federal government, the court said, then the current and former ministers of the interior should appear in person to explain why the petitions may not be decided.
“The learned attorney-general shall satisfy the court that in case of alleged disappearances in future why criminal cases may not be ordered to be registered against the chief executives of the federation and the concerned provinces,” it added. The hearing of the case will take place on June 17, the court said.
