Democracy is not just about elections. They are just the first step in the process of developing a democratic society where human rights are fundamental; without them, democracy means nothing.
Torture is a denial of the idea of human rights. Prohibition of torture is one of the very few absolute rights under international law. There are no circumstances, no exceptions, that allow any limitation on the prohibition of torture. The right to be protected against torture is so absolute that it takes priority over the right to life.
The definition of torture under international law focuses on the role of the state in assuring that any interaction between state authorities and individuals remains so that the state cannot use any kind of physical or mental violence even against persons accused of the most heinous crimes. The international definition of torture is restricted to acts committed by states, organs of states or by others with the collusion or consent of states.
Torture is not only a violation of human rights, it is also a serious international crime. Specifically, the UN Convention Against Torture (UNCAT) deals with the subject of torture. Several elements of the convention are important as they create a mechanism that allows a committee to evaluate and assess the conduct of the state and its commitment to eliminating torture. Such committees can accept reports from civil society organisations, thereby giving an alternative to state sanctioned reports. The committee makes recommendations on this basis, highlighting the more prevalent and consistent practice of tortures that they see happening all over the world.
Legislative and judicial attention is brought in to fill the gaps in enforcement. Judiciaries need to function so that the potential for the use of torture is limited. Committees have said time and again that there is lack of a proper legal framework around torture. Above all, disciplinary provisions must be recommended so that those within the state who so liberally practise torture, especially on those they hold in custody, do not feel they are immune from the consequences of using torture.
It is essential that our legislature realise that in the Pakistan Penal Code, for instance, torture is not a crime as defined in international law. There are crimes against the human body that can be used against torturers but they do not cover the whole picture. In our penal code we have a special chapter on offences against the state; we need a chapter of offences by the state with specific measures for oversight and monitoring.
One of the unfortunate realities of this region is that, while there are lots of initiatives undertaken for the prevention or elimination of torture, we have not made any significant achievements. One reason is the absence of public outrage against torture. Without zero tolerance for torture generally, we only find approbation of torture in those who have experienced it.
When you raise the issue of torture, you will notice that what should be a completely unacceptable practice is not seen that way. This is one reason why we are unable to undertake more effective campaigns. While there is public awareness of torture, what is lacking is collective conscience. As a society, we need to send out the message that torture is unacceptable; otherwise, the state will not comply with international laws. Anti-torture initiatives that aim to train law-enforcement officials and let potential victims know of their rights have had limited success.
Those who train law-enforcement personnel say that they use torture not because they do not know any better but because torture has become a method of the state to govern. In some cases, law enforcement even justify the use of torture as something done for the public good. Police say it every day: “We use torture to make you safe.” What kind of state in the 21st century needs to rely on torture without having the understanding or the political will to solve crimes and eliminate criminal impunity without the use of torture?
For us, torture is an issue that affects our ability to live with dignity, our right to life and physical integrity. This is something that we face or risk facing every day. Not just when being arrested but when law-enforcement personnel use brutality on dissenting voices. This is something that is so prevalent that it now demands a collective commitment and intelligent, innovative mechanisms to ensure that effective protection against torture begins.
A few important developments with respect to the environment that enables torture have surfaced recently: the use of deception, of clandestine detention locations, the deliberate policy of making official detention centres inaccessible to independent monitoring and the use of counterterrorism laws to dent the rule of law and due process, which gives rise to increasing use of torture.
For instance, counterterrorism laws to extract confessions have globally become worrying sources of deprivation of human rights. When laws allow detention of prisoners where torture is allowed, the practice is continued with impunity. That is when we have crossed a line. If our laws allow confessions extracted under torture this will allow the state to use these laws to punish political opponents, restrain human rights activists and exercise absolute control through the use of torture.
It is usually thought that torture is limited to law enforcement. However, health workers in public institutions can also be used to inflict torture. Doctors from public military hospitals have been used to inflict torture; there are examples from every country in South Asia. Doctors are also the first to notice when somebody has been tortured and should therefore be the first to report torture, which they do not do. It is important that health sector workers be instructed in their role to prevent torture and their duty to protect torture victims.
The judiciary has the jurisdiction to prevent torture and to revoke impunity in this culture of torture. We all know several hundred habeas corpus cases are heard every day by the courts, and in many of these cases people are recovered. It is only in the rarest cases that people who are recovered have the opportunity to complain and then courts include complaints of torture.
Despite a high recovery rate of people, how many cases are there of bringing torture to account? We have to fight torture to create a state where torture is a deviation rather than the norm.
The writer is a journalist based in Lahore. Email: shrnaqvi3gmail.com