The Islamabad High Court (IHC) has directed the government to serve notices on former president Gen (retired) Pervez Musharraf and all successive chief executives, including Imran Khan and incumbent premier Shehbaz Sharif, for following an “undeclared tacit approval of the policy regarding enforced disappearances”.
IHC Chief Justice Athar Minallah issued a 15-page order on Sunday in a case related to the disappearance of journalist Mudassar Mahmood Naro and five other people after their petitions were fixed for final arguments, but the federal government requested an adjournment.
In the order in the case (Rana Mohammad Akram versus Federation of Pakistan), Chief Justice Minallah observed: “Retired Gen Pervez Musharraf and all other successor chief executives i.e. the former prime ministers, including the incumbent holder of the office shall submit their respective affidavits explaining why the court may not order proceedings against them for alleged subversion of the Constitution in the context of undeclared tacit approval of the policy regarding enforced disappearances and thus putting national security at risk by allowing the involvement of law enforcement agencies, particularly the armed forces.”
“Pervez Musharraf has candidly conceded in his autobiography In the Line of Fire that ‘enforced disappearances’ was an undeclared policy of the state,” he said.
“The onus is on each chief executive to rebut the presumption and to explain why they may not be tried for the offence of high treason,” the chief justice said in the order.
He said the armed forces had and continued to render sacrifices for the security and integrity of the country and ought to be respected by every citizen otherwise security and integrity of the country and its people would be exposed to being jeopardised.
However, the order continued, “the involvement or even a perception of the involvement of the armed forces in acts amounting to violation of human rights and freedom of the citizens weakens and undermines the rule of law”.
Justice Minallah said in case the missing persons were not recovered nor effective and demonstrable actions/decisions were taken by the federal government, the current and former ministers of interior shall appear in person to explain why the petitions might not be decided and exemplary costs imposed upon them for the unimaginable agony and pain suffered by the petitioners on account of lack of response and empathy while dealing with their grievances.
“The learned attorney general shall satisfy the court that in case of alleged disappearances in future why criminal cases may not be ordered to be registered against the chief executives of the federation and the provinces concerned,” the order said.
The court also lamented the role of media for not effectively highlighting the issue of missing persons and observed that, “the print and electronic media has a pivotal role in highlighting the unimaginable ordeal and agony of the families of the missing persons but it appears that they either prefer to ignore the worst form of abuse of state power and violation of fundamental rights or they do not consider it a priority.
The IHC also expressed dissatisfaction over the role of the parliament on the matter, saying “the Majlis-e-Shoora (Parliament) and the legislatures of the respective provinces are the most important and crucial organs of the state but nothing has been placed on record to indicate that they may have adopted a proactive role to fulfill their Constitutional obligations.”
The court observed that the phenomenon of enforced disappearances exposed the victims to unimaginable pain and agony and the state, instead of fulfilling its constitutional obligation of protecting its citizens from harm, assumed the role of an executor sans due process.
“The loved ones of the petitioners are missing and the State has so far failed in its constitutional obligation to satisfy them that the disappearances are not ‘enforced disappearances’,” the order added.
If said the court had exercised utmost restraint to enable the organs and institutions to fulfill their constitutional obligations but, for reasons best known to them, the worst form of abuse of state power and violation of fundamental rights had been dealt with in a manner amounting to mere eye wash.
“The grievances of the petitioners are only a tip of the iceberg because thousands of citizens are reported to be missing and their loved ones have been publicly seen demonstrating throughout the country,” it added.
The court vide order, dated 25-11-2021, had directed the secretary, ministry of interior to arrange an opportunity of audience to the mother and child of a missing journalist, Mudassar Mahmood Naaru, with the then prime minister and members of his cabinet.
The meeting was arranged but nothing was placed on record to indicate the response of the federal cabinet.
The order said it was obvious that the armed forces were subservient to the control and oversight of the organs of the state explicitly described in the above reproduced provision of the Constitution.
It said the court, therefore, afforded a last and final opportunity to the attorney general to argue the petitions.
In the meantime, it is directed as follows: “The federal government shall produce the missing persons before the court on the date fixed (June 17) or justify the failure of the state to effectively investigate and trace their whereabouts”.