Enforced disappearance: State must satisfy dependents of victim, rules IHC

The Islamabad High Court (IHC) has ruled that the state and its functionaries have to discharge an onerous burden to satisfy the loved ones, particularly the dependents of the victim that it is not a case of “enforced disappearance”.

The court also held that the phenomenon of “enforced disappearances” definitely constitutes a grave crime against humanity.

"The track record of the state and its functionaries regarding enforced disappearances has not been flattering nor encouraging. It is on account of such a track record that the state and its functionaries have to discharge an onerous burden to satisfy the loved ones, particularly the dependents of the victim that it is not a case of ‘enforced disappearance’,” a five-page order authored by IHC Chief Justice Athar Minallah in a matter regarding enforced disappearance of journalist and poet Mudassar Mahmood alias Naaru said.

He is missing since August 20, 2018.

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Justice Minallah said that the petitioner (father) and loved ones of Mudassar Mahmood have reasonable grounds to believe that agencies under the control of the federal government are allegedly involved in his abduction.

"Keeping in view the track record of ‘enforced disappearances’ in Pakistan in the past, it is the duty of the federal government to reach out to the victims and assure them through the reactions and attitudes of public functionaries that the state is not involved and that it has the intent and will to protect the rights of its citizen.

"The buck stops at the worthy prime minister and members of the federal cabinet because collectively, they constitute the federal government. It is an onerous duty of the latter to dispel apprehensions and doubts of the petitioner and other loved ones of Mudassar Mahmood regarding involvement of the state or its institutions in his status as a missing person,” the order said.

“Interior secretary is directed to arrange an opportunity of audience for the father, mother, wife and the three-year-old son of Mudassar Mahmood with the federal cabinet ie the worth prime minister and its members.”

The IHC asked deputy attorney general to seek instructions and inform this court on the next of hearing regarding the time and date for the audience.

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“The anguish and suffering of the close relatives and dependents cannot be comprehended when the conduct and attitude of state functionaries and institutions towards the victims does not manifest the intent and will of being guardians of the fundamental rights of the citizens.”

The order said that the reactions and conduct of the authorities become crucial when the alleged crime is brought to their attention.

Perusal of the record of the case in hand manifests the failure of the state and its institutions, the order said, adding that the phenomenon of “enforced disappearances” has not been alien in Pakistan.

"It cannot be denied that deprivation of liberty of citizens by agents of the state or by persons or groups acting with the authorisation, support or acquiescence of the state has been acknowledged by public functionaries in several cases in the past.

"The positive constitutional obligation of a state to protect fundamental rights and to investigate and punish a perpetrator in accordance with the law is grossly breached when the state and its functionaries assume the role of abductors,” the order said.