Missing Persons: Aitzaz Ahsan Challenges Objections Raised By Supreme Court Registrar

Senior lawyer argues that per a judgement of the Supreme Court, there is no provision in the rules which empowers the registrar to touch upon the maintainability of a petition

Missing Persons: Aitzaz Ahsan Challenges Objections Raised By Supreme Court Registrar

Senior lawyer Aitzaz Ahsan has challenged the objections raised by the Supreme Court's Registrar's Office on his petition regarding enforced disappearances. 

Ahsan filed an in-chamber appeal on Friday through his counsel, Sardar Latif Khosa. Ahsan has requested the top court to set aside the objections raised by the registrar's office and fix the case for hearing.

"The powers of the registrar under the Supreme Court Rules, 1980 are primarily administrative in nature. The registrar does not have the power to give judicial determinations as couched in the registrar’s decision," Ahsan's appeal read, adding, "The determination that the titled Constitution Petition is “not entertainable” is a decision on the very maintainability thereof, which is a judicial function to be exercised by a Court of law."

The Registrar's Office had on November 8 returned a senior lawyer's Constitutional Petition after raising six different objections. 

Ahsan's appeal cited a judgement issued by Justice Mansoor Ali Shah, wherein he had observed that there is no provision in the rules which empowers the registrar to touch upon the maintainability of a petition.

Regarding the question of whether his original petition was of public importance, Ahsan contended that a bare perusal of the Constitution Petition reveals the fundamental rights of the public that are at stake.

"For decades, the people of Pakistan have been subjected to enforced disappearances," he stated, adding that this illegal and unlawful practice continues with full force today. 

"Despite the fact that a Commission of Inquiry on Enforced Disappearances has been established, it has failed miserably to address such malaise." 

In his original petition, Ahsan had questioned the performance of the Commission of Inquiry on Enforced Disappearances. He had further requested the apex court to declare that the body does not adequately comply with local or international standards.

"The actions of the state have trampled on the fundamental rights of citizens," he stated in the petition.

The petition was filed days after reports emerged that scores of Pakistan Tehreek-e-Insaf (PTI) workers were apprehended from their homes in Lahore ahead of the party's convention to protest the return of deposed prime minister and Pakistan Muslim League-Nawaz (PML-N) Nawaz Sharif.

"Recently, there has been a surge of enforced disappearances and 'reappearances' of citizens. Such victims include journalists, politicians, bureaucrats and other dissenting voices. The purpose of these practices is to intimidate and create an atmosphere dominated by fear," Ahsan stated in his petition.

Ahsan is linked with the Pakistan Peoples Party (PPP). But in recent months, he has adopted an outspoken stance over what he claims is the political victimisation of the opposing PTI and the arrest of PTI leaders, workers and even activists such as journalist and television anchor-turned-YouTuber Imran Riaz Khan. It has cost him politically, with the PPP first evicting him from party positions and then suspending his basic party membership, effectively expelling him from the party.

However, his petition was not specific to the PTI. The lawyer sought to challenge the illegal and unlawful practice of enforced disappearances of citizens and that such malaise has afflicted the nation for decades, haunting generations upon generations, and, continues unabated even today.

Filing the petition through another senior lawyer, Sardar Latif Khosa, he urged the top court to direct the federal and the provincial governments to submit a list of all those individuals who were deemed to have been disappeared forcibly and are currently in the custody of various arms of the state.

He further requested the top court to direct the federal and provincial governments to prepare and submit within four weeks a report probing and identifying the law enforcement and other security officers responsible for the practice of enforced disappearances. The petitioner further asked the Supreme Court to issue directions to produce all the forcibly disappeared individuals before the relevant courts within four weeks.

Ahsan listed the federal government, the provincial governments, the inspector general of police of the four provinces and the Commission of Inquiry on Enforced Disappearances as respondents.

The petitioner also cited the definition of enforced disappearance contained in the International Convention for the Protection of All Persons from Enforced Disappearance (2006).

Ahsan also raised the issue of people being picked up and forcibly disappeared only to resurface a short while later to either host a press conference or an interview on media in which they renounce their association with the PTI.

"Imran Riaz Khan, a journalist with millions of followers, went missing on May 12, 2023, and was 'recovered' on September 25, 2023," Ahsan said, noting that this was but one instance.

He added that in a statement to the media after his recovery, Imran Riaz Khan’s lawyer stated, "Imran Riaz Khan is in a 'weak mental and physical state', and has 'suffered a weight loss of 22 kilogrammes'. He also has difficulty in his speech, delivery and movement."

Ahsan added that politicians such as former federal minister and Awami Muslim League (AML) chief Sheikh Rasheed Ahmed, former member of the national assembly Sadaqat Ali Abbasi, former federal minister Farrukh Habib, and former head of Imran Khan's Youth Programme Usman Dar had gone missing for weeks, only to miraculously 're-appear' on media via television talk shows or press conferences while delivering from a "predictable script". 

He further argued that the same pattern of illegal and unlawful practice of enforced disappearances and 'reappearances' was repeated with bureaucrats such as former principal secretary to prime minister Azam Khan and Muhammad Ahmad Bhatti. 

"These are a handful of known victims. The number of unknown victims is unknown," it added.
"Surely, as the guardian of fundamental rights guaranteed under the Constitution, this Honourable Court will not look the other way while the State acts with total impunity," Ahsan argued.
The practice of enforced disappearances has historically and disproportionately targeted the Baloch. For decades, the families of missing persons in Balochistan have held long marches, protested in front of press clubs, and made desperate pleas to the government to end the practice of enforced disappearance. But these pleas have fallen on deaf ears, Ahsan's petition added.

He added that during the PTI government, a law was introduced criminalising enforced disappearances.

Recently, Ahsan pointed out, Caretaker Prime Minister Anwaarul Haq Kakar had claimed that per a Sub-Committee of the United Nations, around 50 people have been forcibly disappeared in Balochistan.

This claim, while not backed up by the official figures, had been accepted by the caretaker prime minister, it said, adding that there is a need to inform where these people are, which detention facilities they have been kept in, under what law have they been detained, and why are they not being produced before a court of law?

"There is no law which governs the mandate of the intelligence agencies, and there is virtually no civilian oversight. This adds to the lack of accountability in cases of enforced disappearances where the state is implicated."

Mentioning the disappearance and reappearance or arrests of certain PTI politicians or activists, the petition argued that the common element in these cases and many others was the "inexplicable switching of political loyalties upon release and 'reappearance' before the world."

Referring to the interview and other videos of Sadaqat Ali Abbasi, the petition said that in one case, it was shown that the victim was weeping helplessly on the shoulders of his mother but was unable to spell out the nature of his disappearance or describe who his captors were. 

"A complete state of lawlessness has been created across the country. The actions of the state have trampled on the fundamental rights of citizens that are at the centre of any civilised society governed by the rule of law," the petition said, adding that with each passing day, citizens 'disappear', only to 're-appear' and publicly express their support for the state narrative. 

"Countless citizens still remain missing. The state has a duty to protect its citizens – it must not subjugate its own people," Ahsan argued.
Under the current constitutional dispensation, the enforced disappearances of civilians are violative of the Constitution and an affront to their fundamental rights, he contended.

Ahsan urged the top court to set up an "effective and purposeful commission" with a senior judge of Supreme Court, who has at least two years ahead of him / her in office, as the head of the commission while it would comprise nine other members including the President of the Supreme Court Bar Association, presidents of the four provincial high court bar associations, the chairperson of the Human Rights Commission of Pakistan (HRCP), the chairperson of the National Commission on Status of Women, the director general (C) of the Inter-Services Intelligence (ISI) and the additional director general of the Intelligence Bureau (IB).

The writer is an Islamabad based journalist working with The Friday Times. He tweets @SabihUlHussnain