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SC says govt prima facie involved in disappearances

11 December, 2013

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ISLAMABAD: The Supreme Court on Tuesday observed that the government was prima facie involved in the missing persons case and asked the prime minister to make sure that no enforced disappearance occurs in the future.

The court ordered the prime minister, chief executive and governor of Khyber Pakhtunkhwa to ensure the recovery of all the missing persons within seven days and people involved in enforced disappearances must be dealt with in accordance with the law.

A three-member bench of the apex court headed by Chief Justice Iftikhar Muhammad Chaudhry and comprising Justice Jawwad S Khawaja and Justice Ameer Hani Muslim was hearing the missing persons case.

The court disposing of the 35 missing persons case directed Prime Minister Mian Nawaz Sharif, KP Chief Minister Pervaiz Khattak and Governor Shaukatullah to proceed with the instant case and ensure the recovery of the missing persons in seven days.

The court in its short order directed that a compliance report be filed with the registrar's office for the perusal of the judges.The court ruled that there is no law or authority to authorise any agency like the Military Intelligence (MI), Intelligence Bureau (IB), Inter-Services Intelligence (ISI), and Frontier Corps (FC) to detain persons illegally. However, the order said, at times police detain people after filing an FIR.

The court ruled that the Army authorities under Pata/Fata Regulations have removed these 35 persons from Malakand interment centre of which only seven were produced before the court and the whereabouts of the remaining internees was only known to them.The court observed that since there was no law for detention except in KP, therefore, there must be a proper legislation to control such activities in other parts of the country.

"We are of the opinion that a person who had been confined in the interment centre in Aid of Civil Power supposedly come under the control of administration and the regulation is silent as to how the Army authorities are authorised to remove the internees without seeking permission without even declaring reasons for which they have been removed from the interment centres," the order noted.

The court ruled that it don't say that there should not be any procedure for conducting this exercise. "We are not in agreement with the Ministry of Defence that the persons were not illegally removed from interment centre by the Army authorities," says the order.

"Prima facie, we can draw a conclusion that all the 35 persons were undeclared internees and the Army took away these 35 persons from Malakand interment centre and only seven were produced before Justice Amir Hani Muslim and no explanation was offered," says the order.

The court ruled that when it enquired form the acting secretary defence about the forcible removal of these persons from the interment centre, he stated that Army has been given powers under article 245 of the constitution, adding that the Army can exercise such powers when there was an internal and external aggression.

The court noted that as there were 721 cases of enforced disappearances, it inquired from the attorney general as to whether there is any law empowering the Army and law enforcing agencies to detain persons. The AG replied that his office had submitted a draft before the federal government for making legislation but no progress was made yet.

The court recalled that despite repeated directions since August 5, 2013 and later even the defence minister and the prime minister through the defence minister got involved, but the issue of producing the missing persons as per the list has not been resolved. "What is the remedy to these relatives of the missing persons running from pillar to post for the last five months," the court questioned.

The court ruled that the prime minister and his cabinet in terms of article 90 of the constitution are duty bound to ensure production of these missing persons and also ensure that all the officers, responsible for removing these missing persons from the interment centres be dealt in accordance with law.

The court said the acting secretary defence could not make satisfactory answers except saying that they were trying their best to locate the missing persons."The stance of the acting secretary defence that the missing persons were not in the custody of the Army proved incorrect," said the order.The court ruled that enforced disappearances have been considered to be serious crime all over the world.


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