“Pakistan has yet to ratify UN’s Convention on Enforced Disappearances. But, in practice, even ratifying a human rights treaty amounts to very little. The point is for it to translate into domestic law and later for the law to be implemented effectively,” says Shehzad Akbar, a human rights lawyer heading the Foundation for Fundamental Rights (FFR). The FFR is an organisation of attorneys and socially active individuals working towards the advancement, protection and enforcement of fundamental human rights.
Pakistan subscribes to the dualist model of international law, meaning that “even after ratification, an international treaty does not become a part of domestic law. In fact, legislation is needed to translate the law into national law,” comments Justice (retd) Ali Nawaz Chohan, chairperson National Commission on Human Rights.
“But there are certain other legal links, for instance the International Covenant on Civil and Political Rights (ICCPR) and the Convention against Torture (CAT) that Pakistan ratified in 2010,” he says.
Pakistan’s first review of ICCPR by the United Nations Human Rights Committee (UNHRC) was held in Geneva in July where the Pakistani delegation was asked why they did not have a single member of the NCHR among them. The delegation had a tough time trying to come up with satisfactory answers to questions posed by the reviewing body. The UNHRC also pointed out the fact the human rights committees the delegation was citing in its successes were under the Ministry of Human Rights now.
Pakistan is just two months away from its Third Universal Periodic Review Report (UPR) by the UN’s Human Rights Council in November where it will be expected to present a detailed report, no longer than 10,700 words, on progress in human rights in the country. During its second UPR held in 2012, Pakistan had accepted one recommendation, which was to specifically criminalise enforced disappearances but it stopped short of taking any tangible steps in this direction.
In contrast, “If we go back further, there have been attempts to legalise the enforced disappearances. A case in point is the Action in Aid of Civil Powers 2011, which was enforced with retrospective effect from 2007,” says Akbar.
After invitation for a country visit in 2012, the UN Working Group on Enforced and Involuntary Disappearances (WGEID), in its 2013 report acknowledged that “Pakistan is facing important security challenges, including attacks by terrorist movements and violent groups.” It nonetheless emphasises that actions taken to deal with security threats, and in particular with terrorism, must at all times respect nationally and internationally recognised human rights. It recalls that Article 7 of the Declaration on the Protection of All Persons from Enforced Disappearance states that “no circumstances whatsoever, whether a threat of war, a state of war, internal political instability or any other public emergency, may be invoked to justify enforced disappearances.”
The working group further recommended that the constitutional, legal and regulatory framework, in relation to the issue of the deprivation of liberty, be in full conformity with international standards.
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In the last report by WGEID in 2016, the working group thanked the government of Pakistan for its cooperation throughout the process, but regretted that “most of the recommendations contained in its country report [from 2013] have not been implemented.”
The Working Group further observed that “the number of enforced disappearances is increasingly rising across the world with the false and pernicious belief that they are a useful tool to preserve national security and combat terrorism or organised crime.”
Saroop Ijaz, lawyer working for Human Rights Watch in Pakistan, talks about a “considerable shift from pattern” that has taken place over the years. Reflecting on the recent wave of enforced disappearances where rights activists, political workers, academics and journalists have gone missing, he says that “Enforced disappearance is now used as a means to quell dissent spreading the ambit to non-violent dissenting people. Fundamental rights have now been suspended in a war-like situation and the writ of the government is perceived to be under attack.”
He talks about how the “national security rhetoric” is evoked to give legitimacy to the practice, as was recently seen in the case of missing social media activists.
Highlighting a dangerous repercussion of resorting to such methods, he states that “this shows that the entire criminal justice system is considered to be inept by the government itself. The majesty of the government’s writ is enforced by law, not by abuse of law, and contradiction of fundamental rights.”
Justice (r) Chohan’s view is that to improve the state of human rights, “a civil law is also needed on torture. The definition of torture merely as ‘hurt’ is something that needs to be expanded. There is a need to understand that preventive detention, for instance, exposes detainees to psychological and physical torture.”
But “the political leadership does not deliver on promises of championing the cause once it comes to power. We are still struggling with gathering reliable data,” adds Akbar.
Though international pressure has been building up for Pakistan to take prompt action to criminalise enforced disappearances, in Akbar’s opinion “global superpowers have lost moral ground: After 9/11, we too made it clear that the nationals we handed over [to the US] are their terrorists and these [the ones we keep in our internment centres] are ours.”
However, the government’s disinclination to act bears an economic cost as well. Getting the GSP Plus status meant that Pakistan had to sign 27 international treaties, out of which 7 were those related to human rights. Earlier last month, the Minister for Commerce and Textile, Pervaiz Malik told the media that Pakistan’s exports of home textile products to EU had gone up by 60 per cent in 2016 as compared to 2013 and Pakistan’s carpet and rug exports in the EU had increased from 30.30 million euros in 2013 to 37.92 million euros in 2016. He further went on to say that “we are committed to enhance trade volume with EU and other regions of the world.”
“The GSP Plus status is contingent on making good on the 27 signed treaties. Failure in legislation and accountability could pose serious problems for Pakistan,” notes Ijaz.
The second biennial review of Pakistan’s GSP Plus Status is currently underway and the review report will be submitted in January 2018.