Enforced disappearance, a Pakistani court ruling and us 

Illustration: TBS

The last time Sanjida Islam Tuli's elderly mother saw her son's face was nine years ago. Her son Sajedul Islam Sumon, an alleged victim of enforced disappearances, was forcibly taken away back in 2013. In search of her son, this desperate mother rushes out to the balcony each morning whenever she hears a car passing by their house. 

"If that car would drop my brother home! We have listened to stories that people who disappeared are sometimes dropped back like that. So my mother still rushes whenever she hears sounds of a car at dawn," Sanjida Islam Tuli, the cofounder of Mayer Dak, a platform for families of the victims of enforced disappearances told The Business Standard. 

Sanjida said that after unsuccessful efforts to engage the law enforcement agencies to get her brother back, they went to the higher court. 

"Back in 2016 the  Court issued a show-cause notice seeking an explanation as to why Rab's actions to pick Sumon up was not illegal," Sanjida said. "But that was all. Since then, none has responded to the court ruling, and later on, the court also didn't take our case into account," she added. 

According to human rights organisations like Human Rights Watch (HRW), around 600 persons have been victims of enforced disappearance in Bangladesh since 2009. Some of these people returned, but the fate of many like Sumon remains unknown. 

The human rights organisations say the authority in Bangladesh is not serious about addressing this human rights violation. According to HRW's Asia director Brad Adams, "the government has no intention of meaningfully addressing enforced disappearances by its security forces." 

The enforced disappearances, however, are not an evil that has gripped Bangladesh alone. Both India and Pakistan in this region have issues with enforced disappearances. And the authorities' silence or failure to address this human rights violation is also shared. 

But recently this year, in Pakistan, a landmark court ruling has created a new hope in addressing the enforced disappearances. The court has directly held the state heads responsible for violating human rights. 

The Islamabad High Court (IHC), in the recent ruling, asked all the state heads since Pervez Musharraf to submit explanations for their 'undeclared tacit approval' in the cases of enforced disappearances or to face charges of subversion of the constitution. 

The court has also castigated the National Assembly for not doing enough to fulfil their constitutional obligation and the media for not being persistent in highlighting the issue proactively.

Back in 2006, Pakistan's former president Pervez Musharraf candidly conceded in his autobiography In the Line of Fire that enforced disappearances was an undeclared policy of the Pakistani state. And it didn't end with the fall of Musharraf. It continued to haunt Pakistanis forever. 

Since 2011, when the Pakistani government formed a commission of inquiry about the 'missing persons,' it has documented at least 8,154 cases; of which 2,274 remain unresolved.

From journalists and activists to politicians that the Pakistani establishment fears, thousands of Pakistanis become indiscriminate victims of enforced disappearance each year that allegedly has "undeclared tacit approval" of the state. 

The IHC Chief Justice Athar Minallah in a 15-page order in a case related to the disappearance of journalist Mudassar Mahmood Naro and five other people said that "Retired Gen Pervez Musharraf and all other successor chief executives ie 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."

The buzz that the Pakistani court ruling created in the entire subcontinent holds water.

The hope is that this ruling couple possibly put an end to such grave rights violations once and for all. But the argument is if the court, in countries where the executive bodies are less than enthusiastic about addressing enforced disappearances, could or should take such a move like the IHC? 

More specifically, could the higher court in Bangladesh do something about enforced disappearances the way the Pakistani court approached it? 

"Definitely. Our supreme court has a power called Suo Motu. The court, on its own, can take something into its consideration and issue a rule on the government. It happened before, but not about the enforced disappearances," said Dr Asif Nazrul, a professor of law at the University of Dhaka. 

But Asif Nazrul doesn't see that interest [about enforced disappearances]  in Bangladesh's judiciary. "And the common people, on the other hand, do not have the courage to go to the court about this," he added. 

Shahidul Alam, a prominent photojournalist and activist, considers the Pakistani court ruling against the highest executives of government "laudable and unprecedented." 

"This is indeed what the court should be doing, but we know from experience that it rarely happens. This should be an inspiration for the courts of other countries and hopefully, the families of the disappeared will finally get justice," Shahidul Alam said. 

"Just as importantly, by playing its intended role, the court will win back the confidence of the people, and put an end to this diabolical practice. The court deserves the highest respect of its people. It is a respect that has to be earned," he added. 

Would the court deliberate? 

The families of the victims of enforced disappearances would say that the court should, as they keep praying to get their loved ones back. This hope is all they have to get them going. 

"And why wouldn't we hope?" Sanjida said. "My brother has a wife and two children. Why wouldn't we hope that he will return? He has to come back."

Masum Billah. TBS Sketch