IHC gives govt till Sept to recover 6 missing persons

ISLAMABAD:

The Islamabad High Court (IHC) has given the incumbent government till early September to recover six missing persons, including journalist Mudassar Naro, and present them before the court, warning that in case of non-recovery, the prime minister will have to appear in person at the next hearing.

Chief Justice Athar Minallah heard the petitions regarding missing persons on Monday. The chief justice issued a nine-page written order wherein it is stated that “the worthy prime minister is expected to inform the court regarding actions taken against those public functionaries who have been or continue to be involved in the most inhuman and heinous phenomenon of ‘enforced disappearances’”. The day and time of appearance of the premier will be on September 9 at 10:30am, respectively.

The court also gave one last chance to the attorney general for Pakistan to present his arguments in the missing persons’ case.

The court observed that the joint investigation team (JIT) had declared several cases “enforced disappearances”, maintaining that the cases pending in the Commission of Inquiry on Enforced Disappearances had deepened the plight of the victims. “The PM has to show in practice that enforced disappearance is not an unannounced policy of the state.”

When the hearing began, Attorney General Ashtar Ausaf Ali and former and incumbent interior ministers could not appear in person despite the court order.

Deputy Attorney General Arshad Kayani apprised the court that the Minister for Interior has requested that his appearance may be exempted because he has to attend the meeting of the cabinet. Kayani also informed that the former interior minister could not be informed because copy of order, dated June 17, 2022, was received late.

"Then, we will call the chief executive (prime minister)," the chief justice said.

The court said that the JIT and the commission had declared enforced disappearance in the case of two real brothers, asking who the intelligence agencies were subordinate to.

“The world's best intelligence agency has called the case ‘enforced disappearance’. Where did the principle of civilian supremacy and surveillance go?”

Deputy Attorney General Kayani said that the attorney general himself wants to give arguments.

The chief justice said that he could come on video link.

The chief justice remarked that all the state institutions are responsible for these disappearances and the government has a big responsibility.

The Deputy Attorney General admitted that not everything was going according to the law in this case.

Justice Minallah asked, “Where are the affidavits of the incumbent and former prime ministers?”

The deputy attorney general replied that a letter had been written to the Cabinet Division for the affidavits, adding that the incumbent government should be given some time.

The chief justice said that if the government had any sympathy, the families of the missing persons would have been contacted, adding that the state had failed to fulfill its responsibility.

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“In the case of the two missing brothers, all the state agencies ISI, MI, Counter Terrorism and Task Force declared that the brothers were forcibly disappeared.

“So what action did the state take to find out which institution has them … from whom should this court now investigate this matter?”

The deputy attorney general said, “The government is aware of every single moment but a little time should be given.”
The chief justice said that the case has been pending since 2020.

Advocate Raja Mushtaq said that the enforced disappearance of his two sons Faisal and Qasim has been proved and the production orders of the commission have been available since 2017 but no action is being taken.

The chief justice said that both of them were picked up from the federal capital which fell under the jurisdiction of the Islamabad High Court.

Advocate Colonel (retd) Inamur Rehman told the court that in 2013, the Supreme Court had ordered to produce 53 prisoners at the Malakand Detention Centre in the courts which had not been implemented till date.

The deputy attorney general said that the Ministry of Defence has just received that order.

Chief Justice Minallah wondered whether the order of the Supreme Court of 2013 had just been received by the defence minister.

Advocate Rehman said that a military official had admitted before the Supreme Court that these people remained in his custody.

CJ Minallah said that the government should have acted on it. “Did the government file any review against the order of the Supreme Court of 2013?”

The deputy attorney general remained silent and then asked for more time.

Advocate Rehman said that if the government could pass a law in parliament to allow Indian spy Kulbhushan Jadhav to meet his lawyer, then why it does not allow the missing persons to meet their families.

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Senator Farhatullah Babar revealed that Justice (retd) Javed Iqbal, chairman of the Missing Persons Committee, had disclosed before the Parliamentary Human Rights Committee that 751 state officials had been found involved in the disappearance of civilians and an army spokesman said that a special cell for missing persons had been set up at the general headquarters.

“It seems from your words that there is no civilian control and surveillance in the country,” the CJ remarked.

Babar said, “There is no law regarding agencies.”

CJ Minallah said that there was no need for a law on ISI but if any officer disobeyed the order of the prime minister, he should be court-martialled.

“It is the responsibility of the prime minister … what did your parliament do in all this situation? Is parliament helpless? Parliament is not helpless, it has great powers.”

Babar said he knew parliament had failed.

Chief Justice Minallah said that if parliament failed, what should this court do? “Has the state become a state within a state? If so, we call the prime minister to come to the court and says this.

“This is a huge national security issue. Should the court declare that there is a state within a state in Pakistan?”

Justice Minallah said the main purpose of the Constitution was civilian control and supervision, which the court would ensure. “If a parliamentarian says that the Constitution is unenforceable then what should the court do, if it is a violation of the Constitution then who should be prosecuted and for how long? Who has to defend the constitution?”

Senator Babar said that the government, parliament and judiciary had to defend the Constitution, but there is no response in parliament regarding legislation.

Human rights activist Amina Masood Janjua said that the perpetrators of crime in the Truth and Reconciliation Commission will get a general amnesty and in such a secret hearing, the accused will speak the truth in exchange for amnesty and at least tell whether the missing persons were alive or dead.

“Even nine-year-old production orders have not been carried out here. At least the family will find peace of mind whether their loved ones are in this world or not. I will not exact revenge on anyone. There is no legal status of missing persons in Pakistan, which is why the Prime Minister should be summoned.”

CJ Minallah summoned Abid Saqi, the former vice chairman of Pakistan Bar Council, who was present in the court, to the rostrum for assistance and asked that the government had no answer in the missing persons’ case and it was being said that parliament was helpless.

Saqi said that parliament cannot be helpless and “Farhatullah Babar Sahib is also present”.

The Chief Justice said that the court can only hold the government accountable and give a verdict.

Saqi said that the interior minister should be summoned and court orders regarding missing persons should be complied with. “The government should be accountable to the people,” he said. “The government court should follow the court orders.”

The chief justice said that an order of the Supreme Court in the missing persons’ case had not been implemented since 2013. “This court also gave orders to the government in this case which are not being implemented.”

Saqi said, "We have no choice but to trust the court." Initially, it is necessary to summon the interior minister. “If one prime minister can be sent home for disobeying a court order, why not the others? The prime minister may also be summoned in this case.”

The CJ said, “There are rules that if there is a civil servant, action will be taken according to the rules and if any military officer is involved, he should be court-martialled but who will do all this?”

Saqi said, “I request that the premier be summoned.”

The CJ asked the deputy attorney general why the former interior minister did not come.

Kayani replied, “They are not under our control.”

Saqi said, “It is the job of deputy attorney general to ensure implementation of court orders.”

Justice Minallah asked who the interior minister was at the time when the two brothers were picked up from Islamabad. The court was informed that Ahsan Iqbal was the interior minister at that time.

The chief justice said, “The phenomenon appears to be an undeclared policy of the state as was acknowledged by one of the former chief executives, General (retd) Pervez Musharraf, in his autobiography, ‘In the Line of Fire’.

“Despite giving opportunities, the executive branch of the state has failed in fulfilling its obligations proactively so as to dispel the presumption that the most heinous and despicable phenomenon is an undeclared tacit policy of the state.”

Advocate Rehman said that the court had also asked General (retd) Musharraf to give a notice which was not followed.
Babar said that the real issue is the state within the state and the prime minister should be called which will bring to light many things and then the door will open, as calling the low-ranked people will not make a difference, “call the prime minister and you can also listen to him in a closed room”.

The CJ said that the people have a right to know … why in a closed room.

“The state has not yet investigated the people who have been picked up from the jurisdiction of this court in the last two years.”

The interior ministry deputy secretary suddenly rushed in the court and apprised it that IB and ISI were not subordinate to the Ministry of Interior, requesting that the committee formed should work seriously and be given some time.

The CJ said that the court was giving an opportunity to the government to demonstrate its concrete political commitment on the issue of missing persons through practical steps. “We have to prove that those who are responsible should be sacked.” The CJ asked, “What did your party do when it was in government?”

Babar said his party (PPP) had set up a commission on missing persons.

The CJ said that it was made on the order of the Supreme Court.

Babar said that the first report of Justice (retd) Kamal Mansoor came during his government’s tenure.

The Chief Justice said that his report was also missing till date.