European Journal of Social Sciences

ISSN 1450-2267 Vol. 59 No 3 May, 2020, pp. 288-299

http://www.europeanjournalofsocialsciences.com/

Enforced Disappearances and Constitutional Guarantees in

Pakistan: A Human Rights Perspective

Muhammad Hassan
Ph.D. Fellow at Faculty of Law
University of Malaya, Kuala Lumpur, Malaysia
E-mail: [email protected]

Muhammad Abdullah Fazi

Ph.D. Fellow at Faculty of Law
University of Malaya, Kuala Lumpur, Malaysia
E-mail: [email protected]

Abstract
Since 9/11, the legal problem posed by way of enforced disappearances in Pakistan have
attracted the scores of legal scholars and authors to critically review the state practice in the
light of domestic and international legal discourse. The analysis of Pakistan’s international
obligations towards security of a person and safeguards to arrest is further complicated as
the country being a front-line ally of “war on terror” has indulged in a state of armed
conflict and, thus, IHL provisions are also triggered. This study, however, focuses on the
law i.e. the Constitutional guarantees, penal code, and the state’s responsibilities towards
international human rights statutes on which Pakistan is a party such as ICCPR and UDHR
in particular. Despite of debates on the type of conflict occurring in a state of war or in
times of peace, the majority view holds that the fundamental human rights apply on all
times, thus, under this view, Pakistan is obliged to guarantee all the protections against
enforced disappearance and human rights in general at all times.

Keywords: Enforced Disappearance, Due Process of Law, Fundamental Rights,

Constitution of Pakistan

Prologue
The alleged practice of enforced disappearance in Pakistan is one of the burning issues which violates
the constitutional and fundamental liberties of the citizens. After 9/11, allegedly the law enforcement
agencies in Pakistan are abducting the individuals without following due process. In Pakistan
thousands of peoples have been disappeared in this manner.1 Particularly, in response to terrorism and
militancy, the alleged practice of enforced disappearance has increased on very large scale. During that
time, the people were abducted, detained in untraced whereabouts in pursuit of counterterrorism
measures.2 Further, they were being denied from all accesses, including hiring lawyers, to have contact

1
ALRC. (2010, August 27). Pakistan: Thousands of Persons Remain Missing amid Government Inaction: Author.
Retrieved from http://www.humanrights.asia/countries/pakistan/news/alrc-news/human-rights-council/hrc15/ALRC-
CWS-15-09-2010 (accessed 2012, October 17)
2
HRW. (2007, June 7). Off the Record U.S. Responsibility for Enforced Disappearances in the “War on Terror”. Author.
Retrieved from http://www.hrw.org/reports/2007/06/07/record (accessed 2013, March 11)
288
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European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

with families and courts.3 Although, there is no specific definition of forced disappearance in Pakistan
Penal Code, 1860. However, municipal law does criminalize abductions4, kidnapping5, wrongful
restraint and confinement6, and unlawful detention.7
On the other side, the security forces claim behind this brutal practice that there are deficiencies
in the procedure of investigation and penal laws. They contended that alleged terrorists may be
exonerated by the courts and may create problems. Therefore, they opt the option to pick up the alleged
persons rather than eliminating the deficiencies in the law of crime and make the culprits accountable
in accordance with the due process of law.8 The deprivation from liberty and due process of law seems
clear negation of their constitutional guarantees. Although, the State’s intelligence agencies have a
commendable role in maintaining law and order situation in the country. These agencies are still
performing a greater role to preserve the integrity of the State. Therefore, the agencies have to absolve
itself from allegation leveled against them and it is not a legal justification as accused are being treated
beyond the jurisdiction of law. In this context, there are certain inalienable constitutional rights
attached with detainees which will be discussed in the next section of this article.

Constitutional Guarantees: A Contextual Approach

The Constitution of Pakistan guarantees to everyone including accused who is being arrested or
detained by the law enforcement agencies. It protects the rights of every citizen although against whom
there may be complaint of violating the law. There are some guarantees which are enunciated in the
constitution of Pakistan.

Right of Individuals to be Dealt with in Accordance with Law

The Constitution of Pakistan 1973 states that every citizen shall have inalienable Constitutional right to
be protected and be treated in accordance with law. Further, no action would be taken by the State,
which may be detrimental to the life, body, liberty, reputation or property of the accused, save in
accordance with law.9
The constitution states that it is absolute and inalienable right of every national wherever he
resides in Pakistan and should be treated with due process of law. Therefore, no action could be taken
against any person with respect to life, liberty body and reputation save in accordance with law.
Further, any assault upon the human rights of any citizen by any private individual or by any
government official should be justified under the law of the country10. In addition, an action which may
cause threat to life, liberty, reputation or property of a person would not be taken, except by legal
justifications11. Additionally, actions or proceedings which may affect a right of access to justice or
held under lack of jurisdiction are Coram non judice or mala fide12. Therefore, every citizen having
constitutional right in term of access to justice, and should be tried before an impartial court or
tribunal13.

3
HRCP. (2009, October 05). Pushed to the Wall: Report of the HRCP Fact-finding Mission to Baluchistan: Author.
Retrieved from http://www.hrcp-web.org/pdf/Pushed%20to%20the%20wall.pdf (Accessed on 2012, September 30)
4
The Pakistan Penal Code (1860) chapter xvi-A
5
Ibid.
6
Ibid.
7
Ibid.
8
Difficulty to proof guilty before the court. (2012, December 12). BBCUrdu. Retrieved from
(http://www.bbc.co.uk/urdu/pakistan/2012/12/121212_goc_malakand_iv_zs.shtml (accessed 2013, February 18)
9
Article 4, the Constitution of Islamic Republic of Pakistan 1973.
10
National Industrial Cooperative Credit Corp v. Government of the Punjab PLD 1992 Lah 462
11
Khalilur Rehman v. Deputy Commissioner PLD 1963 Kar 213
12
Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26
13
Al-Jehad Trust v. Federation of Pakistan PLD 1996 SC 324
289
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 European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

In another case, high court14 further observed that the executive has no inherent power to
interfere with private rights except what vests in it by law15. Moreover, a breach of a right conferred by
Article 4 may be complained of either by a suit, or a writ petition16 and Constitutional jurisdiction can
successfully be invoked against statutory body on account of violation of byelaws, rules and
regulations made by such body itself17. In addition, if whoever is arrested and triable under the
ordinary criminal laws but treating the accused under special law would be tantamount of violation of
the command of the Constitution18. Further it was also stated by the court that every citizen within the
territory of the State has right to enjoy the protection of law and to be treated in accordance with law19.
Moreover, it was also held that it is an inalienable fundamental right and must be read with the “right
to fair trial” as enshrined in Article 10-A of the Constitution of Pakistan. Further, judicial
independence, rule of law, democracy, are salient features of the Constitution and need to be treated
unamendable.20

Security of Person
The Constitution of Pakistan 1973 under Article 9 assures security to every citizen and it states that
nobody shall be deprived from his life except in accordance with law and it also prohibits arbitrary
deprivation 21.
The concept of liberty of human body was firstly introduced in Magna Carta 121522. It stated
that everyone is free by birth and no one can be apprehended without due process of law23. By the end
of the eighteen century, liberty had become one of the three highest values to be defended, being
coupled with life and property24
The Constitution of Pakistan also guarantees the liberty of person, and prohibits arbitrary
deprivation of rights.25 It protects the security of person and no person shall be deprived of life or
liberty save in accordance with law. The word ‘life’ is not restricted to animal life or vegetative life. It
carries with it the right to live in a clean atmosphere, a right to live with dignity, a right to have a rule
of law, a right to have clean and incorruptible administration to govern the country, a right to have
protection from encroachment on privacy and right of access to justice, which are inherited in the right
to life26. Furthermore, this constitutional right is reinforced by Pakistan under the international human
rights obligations27 and it has been defined as right or the power to do as one desire. It is obvious that
complete liberty is impossible, because if liberty is carried to excess it can lead only to anarchy.
Although, liberty is not a right which would be uncontrollable or absolute under all circumstances but
deprivation should be in accordance with due process of law28.
14
Highest court of the Province
15
Ghulam Zamin v. A.B Khondkar PLD 1965 Dacca 156
16
Muhammad Ashraf v. Board of Revenue PLD 1968 Lah 1155
17
Ali Mir v. Province of the Punjab PLD 1983 Lah 262
18
Province of Punjab v. Muhammad Rafique PLD 2018 Supreme Court 178
19
Yasir v. The State and Others 2018 YLR 379; Zia Ur Rehman v. The State 2018 YLR 1810
20
Rawalpindi Bar Association v. Federation of Pakistan PLD 2015 SC 401.
21
The Constitution of Islamic Republic of Pakistan, 1973. Article 09
22
A charter of liberties to which the English barons forced King John to give his assent in June 1215 at Runnymede
23
Ch. 26 In the version confirmed by king Edward 1 in 1297; 6 Halsbury’s statute (3rd ed.) 401.
24
Sieghart, P. (1984). The International Law of Human Rights, Oxford University Press.
25
Article 3 (UDHR) (adopted and proclaimed by the United Nations General Assembly resolution 217 A (III) of 10
December 1948): ―Everyone has the right to life, liberty and security of person. See also, Article 9, (ICCPR). Pakistan
has signed and bound by both these international instruments.
26
Chief Justice of Pakistan Iftikhar Muhammad Chaudhry v. President of Pakistan PLD 2010 Supreme Court 61
27
Article 3, Universal Declaration of Human Rights (adopted and proclaimed by the United Nations General Assembly
resolution 217 A (III) of 10 December 1948): ―Everyone has the right to life, liberty and security of person. See also,
Article 9, International Covenant on Civil and Political Rights. Pakistan, having assented to, is bound by both these
international instruments.
28
Mehmood. (2004). The Constitution of the Islamic Republic of Pakistan, 1973. Pakistan Law Times Publication.p.63
290
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European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

Safeguards as to Arrest and Detention

The constitution of Pakistan articulates under Article 10 that a person cannot be arrested or detained in
custody by any law enforcement agency or otherwise unless he is being informed regarding an
allegation. Further he is also entitled to be defended by a counsel upon his own choice and be
presented before the court of law within twenty-four hours. Beyond the stipulated period he cannot be
detained in any custody unless authorized by the court of law. Further, it also states that a person may
be detained for the period of three months under preventive detention if he is acting which may cause
threat to the integrity, defence, external affairs, public order or maintenance and security of Pakistan.
However, if his detention continues after the expiration of three months then his detention must be
affirmed accordingly by the Review Board comprising upon Chief justice of Pakistan and two more
judges of the supreme court or the concerned high court as the case may be. In addition, during his
detention he shall be communicated the grounds of his detention at the earliest possibility not later than
fifteen days for the purpose of ensuring his representation through his counsel before the appropriate
court29.
Morevoer, to ascertain the rights and obligations of any person against any criminal charge, a
trial must be conducted and should be continued with due process. In this context, the Constitution of
Pakistan,1973 empowers the high courts under Article 199 to make an order within its territorial
jurisdiction be produced a detenu before the court and may satisfy itself whether his/her detention is
legal or otherwise30. In addition, the Code of Criminal Procedure, 1898 also preserves the rights of
detainee and abductee as well. The high court has power to direct any official with regard to bringing
the person who is under its territorial jurisdiction before the court in order to check the legal status of
his detention. If the court observes that person is being detained illegally or improperly within its
territorial jurisdiction can set him at liberty.31
Furthermore, the Lahore high court observed in another case, the persons apprehended must be
presented before the nearest magistrate within time prescribed. Failure to comply with the requirements
would make further detention illegal.32 The magistrate can’t go to the place where the detenu is being
kept and remand him to custody. If he does so, he contravenes the provision of this clause.33
In the case Mst. Rowshan Bijaya Shaukat Ali Khan v. Government of East Pakistan, the high
court ruled that arrestee must know the grounds upon which the arrest was made within a reasonable
time, but not later than fifteen days and the communication should be enough particulars to enable
him/her to understand the nature of the case against him/her. If no grounds are communicated the
detention would be illegal34 and the same enables the accused to prepare his defense in time for the
purpose of his trial. Besides, mere reference to the section of law under which he has arrested will not
be treated as a sufficient compliance with the requirement35. Moreover, any provision of law which has
been enacted for the purpose of denying a right to be defended by a legal practitioner upon his own
wishes would be presumed void36. Because, this is utmost right of the detenu that he must be given
reasonable opportunity to engage counsel and engaged counsel must have sufficient and reasonable
time in order to defend his client37. In another case court stated that the constitutional provision giving
to an accused person the right to be defended by counsel must be read as a part of law, irrespective of
whether the law gives or deny such right.38

29
The Constitution of Islamic Republic of Pakistan, 1973. Article 10
30
The Constitution of Islamic Republic of Pakistan ,1973. Article 199
31
The Code of Criminal Procedure Code, 1898. Section 491
32
Sakhi Daler Khan v. Superintendent Incharge PLD 1957 Lahore 813
33
The State v. Mohammad Yousuf PLD 1965 Lahore 324
34
Mst.Rowshan Bijaya Shaukat Ali Khan v. The Government of East Pakistan PLD 1965 Dacca 241
35
Vimal Kishore v. The State of Utter Perdesh AIR 1956 Allabad 56
36
Malik Mohammad Usman v. The State PLD 1965 Lahore 229
37
Muslim Uddin Sikdar v. Government of East of Pakistan PLD 1957 Dacca 101
38
Roshan Bijaya Shaukat Ali Khan v. Government of East Pakistan PLD 1965 Dacca 241
291
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 European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

Furthermore, Pakistan is an Islamic Republic State39 and constitution states that Islam shall be
the State religion40. Islam also prohibits this malpractice and states that no one can be detained until he
is proved guilty. It is not permissible in the religion to apprehend anyone on the basis of doubt and put
him behind the bar without complying judicial process. It also gives the right to everyone to defend
himself in open court. It is narrated that once man asked a question to the Apostle of Allah (SWT)
when He (PBUH) was delivering a sermon, he asked: "O Prophet of Allah (SWT), under what crime
have my neighbor has been arrested?" The Prophet heard the question, and did not response and this
quiz continue thrice. However, the third time the Prophet (PBUH) replied and passed order that his
neighbor shall be released. The reason behind this order was that if a police officer has a valid reason
of their detention he must stand and respond his statement from the very beginning. So, he gave no
reason and remained silent that’s why the prophet ordered to release the arrestees.41

Safeguards against Preventive Detention

The second part of Article 10 deals with preventive detention and its pre and post qualifications.
Although, there is no authoritative definition of the preventive detention. However, the word
preventive is used in contradistinction to the word punitive, so it is not a punitive but used as
precautionary measure. It has three special features. Firstly, it is detention and not imprisonment;
secondly, it is detention by the executive without trial or inquiry by the court; and lastly the objective is
preventive not punitive.42
Basically, this law is inherited from the colonial days and it enjoys protection under the
Constitution. After the independence in 1947 both India and Pakistan chose to retain this law as a
permanent measure. Whereas on the other side, the United Kingdom regarded preventive detention
considered as an extraordinary measure and applied it only to grave emergency situation, such as
armed conflicts and war. Thus, the preventive detention Statutes enacted for this purpose, were
confined to the period of active hostilities.43
The Various legislations for preventive detention have been enacted at the federal44 and
provincial45 levels in Pakistan with providing detailed procedural safeguards.46 These legislations while
granting the power to the executive with regard to arrest and detain suspected persons under the
prescribed procedure time, if satisfied that it was necessary for the maintenance of public safety and
public order.
Whereas the Constitution also states that no one shall be arrested and kept in custody or
detention for more than a period of three months and his case would be reviewed by a Review Board.
Furthermore, a person cannot be detained indefinitely, and his case must be reviewed within stipulated

39
The Constitution of Islamic Republic of Pakistan, 1973. Article 1
40
The Constitution of Islamic Republic of Pakistan, 1973. Article 2
41
Mawdudi, A.A. (1995). Human Rights in Islam. (2nd ed.). Islamic Publication LTD Lahore, Pakistan.p.14
42
Mr. Kubic Dariusz v. Union of India and others AIR 1990 Supreme Court 605
43
Harding, A. & Hatchard, J. (1993). Preventive Detention and Security Law. Martinus Nijhoff Publishers,
Netherlands.p.173
44
The Security of Pakistan Act, 1952, which provides for preventive detention in matters relating to defense, external
affairs, and the security of Pakistan.
45
Punjab Maintenance of Public Order Ordinance, 1960, which provides for preventive detention in the Province of the
Punjab.
46
These legislations have been enacted pursuant to the Fourth Schedule of the Pakistan Constitution, which authorizes the
legislature to pass various kinds of laws regarding preventive detention. See, e.g., para. 1 of Part I, Federal Legislative
List (preventive detention for reasons of State connected with defence, external affairs, or the security of Pakistan or any
part thereof; persons subjected to such detention); paras. 14 & 15 of the Concurrent Legislative List (Preventive detention
for reasons connected with the maintenance of public order, or the maintenance of supplies and services essential to the
community; persons subjected to such detention; and persons subjected to preventive detention under Federal authority).
Members of the National Assembly have been exempted from preventive detention. See, Members of National Assembly
(Exemption from Preventive Detention and Personal Appearance) Ordinance, 1963.
292
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European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

time accordingly. So, this alleged brutal practice in term of enforced disappearance is also violating the
Article 10 of the Constitution of Pakistan.47
However, the security agencies invoke The Security of Pakistan Act 1952 and Army Act 1952,
to justify their actions. Although, it empowers the central government to arrest or detain any person, if
satisfied that it was necessary to do so with a view to preventing him from acting in a manner
prejudicial to the defense, external affairs, the maintenance of supplies or the maintenance of public
order.48 It is pertinent to mention here that it also provides that to communicate the detainee about the
grounds within a period of one month and subject to the proviso that authority may withhold certain
facts in the public interest49. Furthermore The Prevention Detentions Laws (Amendment Act) 1962
provides that except where Federal Government in the interest of security of Pakistan directs
otherwise, the Government should communicate the grounds to the detainee of his detention at the time
when he is detained or as soon as thereafter but not later than fifteen days from the date of detention50
and Statute also assigns a right to make representation.51 Indeed, these laws don’t authorize them in
this regard to apprehend or confine the persons for unlimited period in untraced whereabouts.52
In continuation of this alleged brutal practice, the Supreme Court also observed that any law
relating to preventive detention must incorporate the given safeguards, but even if it does not, being
Constitutional requirement, it must be read with such safeguard laws.53 Additionally, it is also observed
that detaining authority must have reasonable grounds to pass an order of preventive detention. They
must satisfy themselves upon each and every ground of detention. In the absence of single legal
requirement would make the preventive detention illegal.54
However, it seems that missing persons have neither been formally charged under any criminal
law nor have they been detained as a preventive measure under any federal or provincial preventive
detention laws. As such, none of the constitutional or other legal procedures for either arrest and
detention or preventive detention appears to have been followed in the case of enforced disappearance.
This is clear negation of both constitutional norms and international human rights principles. The
alleged practice of missing persons not only involve in a violation of constitutional law, but it attracts
the misapplication of criminal law.

Right to Fair Trial

For the determination of his civil rights and obligations or in any criminal charge against him a person
shall be entitled to a fair trial and due process.55
The newly inserted right, ‘Right to fair trial’ is central to human right doctrine, not only as a
right in itself, but except of this one right, all others may possibly be infringed or be remained on stake.
If the State is dishonestly advantaged in the trial process, it can’t be prevented in the courts from
abusing all other rights.56
In addition, right of access to justice includes the right to be treated according to law, the right
to have a fair and proper trial.57 Thus, the right of due process of law is now a constitutional right
belonging to every human being of Pakistan and it extends not only to criminal charges but also to civil

47
The Constitution of Islamic Republic of Pakistan, 1973. Article 10
48
The ArmyAct (xxxv) of 1952, w.e.f. May 1952, S.3(1)
49
Ibid.S.6
50
Preventive Detention Laws (Amendment) Act 1962.S.2(1)
51
Ibid. S.6
52
Spy agencies not above the law: observe SC. (2010, November 26). The Express Tribune. Retrieved from
http://tribune.com.pk/story/81677/intelligence-agencies-are-not-above-the-law-cj/ (accessed 17, 2012)
53
Abdul Aziz v. West Pakistan PLD 1958 SC 449
54
Ministry of Interior, Islamabad v. Amtul Jalil Khawja PLD 2003 SC 442
55
Article 10-A inserted by the Constitution (Eighteenth Amendment) Act, 2010(10 of 2010)
56
Robertson, D. (2004). A Dictionary of Human Rights. (2nd ed.). Europa publication London & New York
57
Government of Baluchistan v Azizullah PLD 1993 Supreme Court 341
293
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 European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

rights and obligations. Although the Constitution itself does not explain the right to fair trial and what
does it includes? In this regard, international human rights Covenant, such as ICCPR and European
Convention on Human Rights (ECHR) may be a helpful in exploring outline the essentials of what
constitutes a fair trial. Article 14 of ICCPR and Article 6 of ECHR state that right to fair trial includes
public hearing, both in civil and criminal cases, by an independent and impartial tribunal, within a
reasonable time and judgement shall be announced in an open court of law. Although in certain cases
restrictions may be placed on the press and public from attending all or part of a trial. It also includes
that over the entire trial accused shall be presumed innocent unless proved guilty beyond any
reasonable doubt and right to be informed regarding charge against him.
Moreover, the right of access to justice to all is equally found in the doctrine of “due process of
law”. It includes the right of the accused to be tried in a fair way before the impartial court or
tribunal.58 The impartial and independent judiciary is the right which is relied on to ensure that the
“parent” right is protected. It must also be noted that the deprivation of due process of law in itself is
not a right to be used as a device to attack the substance of the verdict or the judgement but a guarantee
of the safety of the proceedings.59 Besides, it is also incumbent upon the court of law or tribunal during
the hearing a trial of criminal nature to ensure that the accused person is given every opportunity to
defend his case and provided with safeguards to ensure that his right to fair trial is not being curtailed
as that right is “aimed at ensuring proper administration of justice”60. It is an obligation of an
adjudicating authority bears the responsibility of ensuring that the trial of the accused is being
conducted fairly61. Additionally, even the legislature cannot enact such laws which may suspend the
right of access to courts of law and justice and denial of this right is also infringement of various
fundamental rights.62
Detention and Due Process of Law under International Human rights laws.
The United Nation Codified Declaration, Conventions in order to preserve the rights of
abductees. All states are bound under the universal legal responsibility irrespective of their treaty
obligations to respect and secure safeguards as to arrest and detention and preserve the right to fair
trial. It is axiomatic that without ensuring due process of law, the protection of rest rights would
probably be remained on stake.

Universal Declaration of Human Rights 1948

The UN General Assembly adopted UDHR 1948 as a common standard of achievements for all kinds
of human beings and nations.63 The majority of scholars expressed that it has been referred to and
followed by the bulk of State, so it has been ripened and crystallized as a matter of customary law and
hence binding upon all States. On the contrary some scholars say that only hard-core rights are binding
on that basis, e.g., torture, slavery, right to life and security64. So, every human
being has exclusive right to life, liberty and security of person and they could not be detached even in
case of emergency65. Further, international court of justice observed that it is nonetheless bound by any
other legal source to ensure the human’s right with respect to the life and security. Notwithstanding

58
Sharaf Fridi v. Federation of Pakistan PLD 1989 Kar. 404
59
Joseph, S., & Castan, M. (2013). The International Covenant on Civil and Political Rights: Cases, Materials, And
Commentary: Oxford University Press. P.408
60
Report of the Human Rights Committee, General Assembly Official Records: Thirty-Ninth Session,
Supplement No.40 (A/39/40), General Comment13/21, 143.
61
Safferling, C. J. M. (2001). Towards An International Criminal Procedure: Oxford University Press. Pp.21-31
62
Government of Baluchistan v. Azizullah Memon PLD 1993 Sc. 341
63
Darraj, S.M. (2010). The Universal Declaration of Human Rights. The Drafting Process. Chelsea House Publication,
New York.p.57
64
Conde, H.V. (2004). A Handbook of International Human Rights Terminologies. (2nd ed.). volume 8 University of
Nebraska press, Lincoln and London.Pp.268
65
Universal Declaration of Human Rights 1948. Article 3
294
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European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

that a State may not have ratified any of the preceding human rights treaties66. Indeed, Pakistan has
also voted in the favour of this universal document67. It states that everyone irrespective of any
discrimination such as cast, religion, sex and race should be heard fairly before the open and impartial
court of law for the determination of his rights and liabilities with regard to any criminal charge leveled
against him68. Further it is also the right of the accused to be presumed innocent until proven guilty.69

International Covenant on Civil and Political Rights 1966

The ICCPR is a widespread recognized document by international community including Pakistan. It
ensures the rights of the detenu and provide due process of law to the accused during his detention70. It
states that no one should be arrested except under the law. Whoever is arrested should be informed
promptly, the reason and charge against him/her. She/he must be produced before the court or any
officer having judicial powers and shall be entitled to be tried within a specified time and court would
be bound to determine the legality of detention first. If court observed that detention is unlawful the
arrestee would be entitled for compensation71. Further, the Committee of Human Rights is currently
willing to draft third optional protocol to ICCPR, in order to secure the right to fair trial under all
circumstances72. This optional protocol will strength this right and would not be derogated even in state
of emergency.
In addition, the Committee of Human Rights concluded in another case that whoever is
arrested, kept in detention without warrant or summon and having no court order as well, it is also
amount the infringement of article 9(1)73. Furthermore, Human Rights Court ruled that detainment
which was although ab initio lawfully would be metamorphosed and would amount arbitrary detention,
if the ground on which detention came into operation had no linked with the objective of legislature
and the court of law74. Besides, where accused had not been communicated about the charges upon
which arrest was made but was informed after a week had been detained. It was held that article 9(2) of
ICCPR had been infringed75. A delay of forty-five days or more does not meet the object of the same
clause.76
The HR Committee in another case further observed that terminology ‘promptly’ would be
determined from case to case and time should not exceed a few days during the interval when anyone
arrested and brought before the court77. It was also infringement of article 9 (3) of the covenant when
accused was produced before the judicial authority after 45 days but having no solid vindications78.
Moreover, whoever deprived of liberty and barred effectively from challenging his presence position,

66
Case Concerning United States Diplomatic and Consular Staff in Tehran (United States of America v. Iran), ICJ Reports
1980, p. 42, para. 91.
67
Ishaq, H. H. (2014). The Right to Fair Trial: Better Late than Never. LUMS Law Journal, 1(1), 96-107.
68
Universal Declaration on Human Rights, 1948. Article 10
69
Universal Declaration on Human Rights, 1948. Article 11
70
The International Covenant on Civil and Political Rights 1966 has approximately 60 signatories and 140 parties.
71
International Covenant on Civil and Political Rights 1966. Article 9
72
The Optional Protocol is one of the annexes to a Report entitled “The Right to a Fair Trial: Current Recognition and
Measures Necessary for its Strengthening”, E/CN.4/ Sub.2/ 1994/24 of 3 June 1994. (accessed October 14, 2012)
73
Communication No. 90/1981, L. Magana ex-Philibert v. Zaire (Views adopted on 21 July 1983), in UN doc. GAOR,
A/38/40, p. 200, paras. 7.2 and 8.
74
Communication No. R.2/8, A. M. García Lanza de Netto on behalf of B. Weismann Lanza and A. Lanza Perdomo (Views
adopted on3 April 1980), in UN doc. GAOR, A/35/40, p. 118, para. 16.
75
Communication No. 597/1994, P. Grant v. Jamaica (Views adopted on 22 March 1996), in UN doc. GAOR, A/51/40
(vol. II), p. 212, para. 8.1.
76
Communication No. 248/1987, G. Campbell v. Jamaica (Views adopted on 30 March 1992), p. 246, para. 6.3.
77
Communication No. 373/1989, L. Stephens v. Jamaica (Views adopted on 18 October 1995), in UN doc. GAOR, A/51/40
(vol. II), p. 9, para. 9.6; emphasis added.
78
Communication No. 625/1995, M. Freemantle v. Jamaica (Views adopted on 24 March 2000), in UN doc. GAOR,
A/55/40 (vol. II), p. 19, para. 7.4; emphasis added.
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 European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

held there is violation of article 9(4)79. The Committee further stated that if the detention proved illegal
or incompatible against any provision of covenant, the court possess complete authority to release the
detainee 80. Moreover, it was also held every human being has fundamental right and his detention
must be reviewed which is ensured by article 9(4)81. Despite these mentioned guarantees article 9(5) of
ICCPR also provides emolument to the victims who have been arrested or detained illegally or
arbitrary as well.82
In addition, due process of law in case of terrorism should be identified with the help of
principle of consistency, a prohibition of derogation measures83. However, derogations under
exceptional circumstances allow a State to temporarily curtail some human rights including right to fair
trial, but the threat must be with a certain gravity84. The effect of a valid derogation is to allow a State
to take measures that would normally be a violation of its obligations85. But recognizing that certain
rights to be derogated does not imply that States facing an emergency can depart from the right to a fair
trial as they see fit. Because, the basic fair trial rights such as the presumption of innocence or the right
to defense can also be counted among peremptory norms86, which cannot be derogated87. Moreover,
anti-terrorist measures should be consistent with a State’s other obligations under international law and
in this regard ICCPR is the right instrument which identify the criteria of valid derogations. Because
human rights law continues to apply in times of piece, armed conflict and in situations of an
emergency. The same has been confirmed by the International Court of Justice (ICJ), if an armed
conflict is found to exist, human rights law does not cease to apply. In short, human rights law
continues to apply in times of emergency and the protections of the ICCPR remains applicable88.
Pakistan, being a signatory State of ICCPR, is violating international covenant as well as negating to
fulfill international obligations because of continuing savage practice in term of forced disappearance.

Judicial Commission
It was a good move when Judicial Commission (JC) was established by the federal government on the
directive of apex court on May 04, 2010 for the safe recovery of untraced disappeared persons. The JC
was mandated to seek a report from human rights activist, NGOs, government and individuals.
Although, the members of Commission were becoming changed with the passage of time89. However,
in its initial hearings, the Commission had traced whereabouts of 314 disappeared persons (DPs)90.
Although, it was positive effort but not admirable. Because the number of missing persons were
progressively increasing and it was revealed by the Commission itself on March 9, 2013 that since
January 01, 2011 to February 28, 2013, eight hundred and sixty-one fresh cases were registered. The
79
Communication No. 84/1981, H. G. Dermit on behalf of G. I. and H. H. Dermit Barbato (Views adopted on 21 October
1982), in UN doc. GAOR, A/38/40, para. 10 at p. 133.
80
Ibid. pp. 143-144, para. 9.5; emphasis added.
81
Ibid..p. 144.
82
General Comment No. 8 (16) in UN doc. GAOR, A/37/40, p. 95, para. 1 and p. 96, para. 4.
83
International Covenant on Civil and Political Rights, 16 December 1966, Art. 4(1),
999 U.N.T.S. 171 [ICCPR].
84
Oraá, J. (1992). Human Rights in States of Emergency in International Law. United States of America: Oxford University
Press. P.20
85
Article 14 of the International Covenant on Civil and Political Rights, 1966
86
Klein, E. (2008). Establishing A Hierarchy of Human Rights: Ideal Solution or Fallacy? Israel law review, 41(3), 477-
488.
87
HRC, General Comment No. 29 (31 August 2001), UN Doc. CCPR/C/21/Rev.1/Add.11, Para. 11
88
Macken, C. (2013). Counter-Terrorism and The Detention of Suspected Terrorists: Preventive Detention and
International Human Rights Law: Routledge. P.80
89
http://www.geo.tv/5-3-2010/64277.htm(accessed 2012, October 9) & Gazette of Pakistan Extraordinary. (2011, March
01). pp.429-431
90
Total 314 Missing Persons Traced by Commission: Imtiaz Warraich. (2012, May 12). Dawn. Retrieved from
http://dawn.com/2012/05/11/total-314-missing-persons-traced-by-commission-imtiaz-warraich/(accessed 2012, October
9)
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European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

total figure of DPs was 999. Further, it was also stated that 378 cases have been disposed of and 621
cases are pending91. Similarly, latest figures of traced and missing person are revealed by the
Commission on February 07, 2020. It is stated that overall total number of 6556 cases were received up
to January 31, 2020. However, the Commission disposed of 4434 cases by January 31, 2020 and the
numbers of pending cases are 212292. On the other side there is no consensus over the number of
missing and traced persons among the organizations and civil societies. However, recovering untraced
persons is encouraging and it is commendable role of all associated agencies. Besides, it is pertinent to
mention here that the Commission is also empowered to initiate criminal proceeding against
perpetrators but it is reported by UN Working Group on Enforced or Involuntary Disappearance on his
visit to Pakistan that they had found nothing any case of such criminal proceeding against anyone who
were allegedly engaged in this savage practice93. Besides, the superior courts were also relucted to
hold the involved persons accountable and uphold the rule of law. Secondly, it was emphasized by the
apex court of Pakistan that the court is focusing to trace the whereabouts of missing persons instead of
holding the alleged culprits accountable. Additionally, the court emphasized that its preliminary task to
trace the whereabouts and subsequently it would make them accountable94. Indeed, it is also
constitutional obligation of the judicial organ to preserve the fundamental rights associated with the
accused and ensure immediate action against all criminal aggression in order to eradicate this menace
practice.

Epilogue
After 9/11, enforced disappearances has become long standing issue in Pakistan. In its justification, the
law enforcement agencies stated that there are deficiencies in the law of criminal procedure due to
which terrorists may be exonerated by the courts. Consequently, the law enforcement agencies opt the
easy option to extra-judicially pick up the alleged persons, who are allegedly engaged in or with the
terrorist groups. Even the Government of Pakistan has stated before the Supreme Court on various
occasion that the present criminal justice system is incapable of maintaining peace in the country.
Under the current scheme of criminal procedural law, despite many arrests, there are very few
convictions, that has resulted in the country being in the grip of terrorism. However, these justifications
to keeping the accused away from due process of law have no place in the law and constitution and it
also goes against the doctrine of a democratic State. On the contrary, there are ample provisions in the
Constitution of Pakistan and international human rights law which specifically prohibit this malpractice
and ensures fair trial to every individual.
In addition, it is an undeniable fact that there are certain loopholes in the substantive and
procedural law of the country. The weak mechanism for crime detection and inefficient machinery for
its prosecution, inter alia are the main causes of delay in the disposal of criminal cases. It requires
certain amendments in the criminal justice system. Indeed, it is the responsibility of the government to
amend the relevant Statutes in conformity with the constitutional provisions. Further, if persons
accused of terrorism tried arbitrarily, there is a chance that the State itself will become a source of
“terror” to its own people. Hence, in order to remove this image, Pakistan has to amend its Penal Code,
1860 and criminalize the act of enforced disappearance as an independent offence.

91
Enforced disappearance: Commission received 861 new cases in two years. (2013, March 09). Dawn. Retrieved from
http://dawn.com/2013/03/09/commission-on-enforced-disappearances-received-861-new-cases-in-two-years/ (accessed
2013, March 19)
92
Reporter. (2020, February 07). “Missing Persons Commission disposed of 4,434 cases up to Jan 31”. The News.
Retrieved from https://www.thenews.com.pk/print/610189-missing-persons-commission-disposed-of-4-434-cases-up-to-
jan-31 (Accessed on 2020, February 16)
93
http://hrcp-web.org/hrcpweb/wp-content/pdf/ff/27.pdf (Accessed 2012, October 9)
94
AI. (2008). Denying the Undeniable Enforced Disappearance in Pakistan. P.35. London, United Kingdom: Author &
http://www.supremecourt.gov.pk/HR_Cases/1st%20final/CP05of2007__.PDF (accessed 2013, March 8)
297
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 European Journal of Social Sciences – Volume 59, Issue 3 May (2020)

Lastly, being a democratic country, Pakistan has to recognize the fundamental rights of the
accused while securing its own integrity. Hence, every citizen, including alleged criminals should have
the equal opportunity and right to approach the independent courts.

References
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[1] Dr. Abdul Jalil v. The State 2005 YLR 3213
[2] Federation of Pakistan v. Ghulam Mustafa Khar PLD 1989 SC 26
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