Justice Minallah calls out judiciary over disappearances

ISLAMABAD:

Supreme Court judge Justice Athar Minallah on Saturday stressed the need for an independent judiciary and fearless judges to address the plight of missing persons, recalling his own judicial struggles in some of the most difficult cases of enforced disappearances.

Speaking at an event on missing persons in Islamabad, Justice Minallah said Pakistan's institutions, including the judiciary and parliament, must accept responsibility for the crisis.

"Our heads should hang in shame," he admitted, "as women from Balochistan continue to march for missing loved ones".

He lamented that "those holding exalted offices have not spoken the truth in the past 77 years. The day they start speaking the truth, things will change. Everyone knows the truth, but we pretend not to."

The judge stressed that Balochistan was "of utmost importance for every Pakistani" and that the Constitution makes every judge responsible for upholding fundamental rights.

"Even after the 26th Amendment, Article 184 has not been amended. Every judge of the Supreme Court is responsible for every violation of fundamental rights that takes place in Pakistan."

Recalling the lawyers' movement, he said its real goal was never merely judicial restoration. "Let me say, that was not a movement for the restoration of the judges. It had a far greater, much bigger role. Its role was to restore democracy, to restore the constitution, and above all, to have rule of law in the country."

He noted that during the lawyers' movement, the slogan was "Riyasat sab ki maaN" (the state is the mother of all), meaning the state is expected to care for its children. However, he lamented that if the state itself is perceived to be complicit, then the courts are left powerless.

Justice Minallah also shared a personal memory from his civil service years before resigning. Speaking out in front of peers, he recalled, encouraged others to do the same, including a police officer who admitted to being informed of "an unannounced policy of extrajudicial killings" during his first posting.

Turning to his judicial career, he described enforced disappearance cases as "the most difficult" he encountered since his appointment in 2014. He recalled that his very first ruling on the issue had set a precedent.

"Fortunately, the first judgment I gave, that victim of enforced disappearance, his family, that daughter was also just like Amna's daughter," he said. "And the judgment I gave… if you read that judgment, the directions that were given, those directions then were extremely effective during the four-year period that I served as the chief justice."

He stressed that he had made his stance clear to the government. "I had made it very clear to the executive that I will not tolerate a single incident of enforced disappearance from within my jurisdiction."

Justice Minallah cited the Maira Sajid case as a landmark ruling that became a reference point for accountability. During his tenure as chief justice of the Islamabad High Court (IHC) from November 2018, he said the court functioned "round-the-clock" as a constitutional court, handling urgent petitions even at night.

"The first case that came to me… I was at home, and the Supreme Court didn't take that case up," he recalled. "Though the journalists went there, I received it in the evening. I passed an order that these are my directions in that judgment. All these officials will be held accountable if… and a separate message was sent to the authorities that there will be no tolerance at all."

Among such cases were those of a missing SECP official linked to a retired general, a young man named Hamza, and another, Munir Akram. In each instance, strict judicial orders compelled authorities to produce the individuals, sometimes within days. "But in older cases, progress was stymied by the lack of independent investigators," he lamented.

He also recalled the disappearance of journalist Mudassar Naaru, whose young son was left in the care of his grandmother after his mother's death. "One day I was in the court hearing cases and all of a sudden, I heard the sound of a child crying in the court… That was Mudassar Naaru's child. His mother had passed away, and the state had failed to at least let them know whether he was alive, he was dead, or where he was."

Seeking to "sensitise the issue," Justice Minallah ordered Naaru's son and grandmother to be taken to the then prime minister. "It's very, very difficult for the courts when the state is not cooperating with you," he said, stressing that responsibility lay squarely with the federal and provincial executives.

With "a very heavy heart," he said, he later summoned the then-prime minister Imran Khan to court. "And the prime minister did appear. Naaru's son was also there. He also assured the court and the child that his whereabouts would be known when I was in haste elevated to the SC."

Justice Minallah said the IHC had prioritised fearless judges because "for a judge or for a court, the only real test is the confidence of the people." He added that even Baloch students had approached the IHC despite jurisdictional hurdles. "I knew I didn't have the jurisdiction, but I assumed it.

The SC was there, other courts were there, but the only judgment on enforced disappearances, addressing the nature of the offence, its gravity, and the extent to which it violates human rights, was the Maira Sajid judgment. And in all jurisdictions, there is no other such precedent, because I searched extensively."

He recalled forming a commission on enforced disappearances, appointing seven eminent voices, including Afrasiab Khattak, PPP's Raza Rabbani, PML-N and JUI-F representatives, and senior lawyers Kamran Murtaza, Ali Ahmad Kurd and Masood Kausar. Academics from LUMS were also included.

"I knew they were all deeply vocal, that they had their hearts in this issue, and that they would come up with something meaningful," he said, though he admitted the fate of the report remained unclear after his elevation to the SC.

He revealed that in 2023, he had written to the chief justice flagging enforced disappearances as "the most important matter in this country," but "nothing happened."

"We are responsible to Amna Janjua, we are responsible to her children, we are responsible to every victim perceived to be a victim of enforced disappearance," he said. "I feel responsible, and I apologise to them as a judge. Yes, I do. I am responsible. We are all responsible."

Calling enforced disappearances a national shame, Justice Minallah said a society "where women from Balochistan are parading on the streets, our heads should hang in shame". But it is women like Amna Masood Janjua and Mahrang Baloch who continue to lead. They are only expressing themselves. What this country needs are independent judges and an independent judiciary."

While stressing respect for parliament, he added, "My experience has been that when they are in government, they do not want to hear that enforced disappearances are an issue. They want to pretend that it is not an issue. But it is."

Justice Minallah warned that without the rule of law, judicial independence, democracy and constitutionalism, "our destiny will not be fair to our coming generations. We owe it to them. And we owe it to the youth".