Reckoning with torture

For those who still care, May 3, 2016 was one of the most chilling days in the history of our country. Following the release of the pictures of the shockingly scarred dead body of an MQM worker, Aftab Ahmad, the director-general of the Rangers admitted that Ahmad had indeed been tortured in custody. The paramilitary force had claimed earlier that Ahmad died of natural causes.

The same day it emerged that an activist belonging to the nationalist group Jeay Sindh Qaumi Mahaz, Kehar Ansari, had suffered torture while in the custody of ‘security agencies’. Thankfully, Ansari survived to see another day.

Anyone who lived in urban Sindh through the beleaguered 1980s and 1990s would be no stranger to mutilated corpses sewn up in gunny bags, dark tales of secret cells run by political mafias, and lives torn apart by terror and ethnic violence. The alleged involvement in such acts of those responsible to deliver Karachi of mayhem amplifies the horror of it all, echoing the time-worn question: quis custodiet ipsos custodes (who shall guard the guards?)

Leaders from across the political spectrum hailed the inquiries ordered by the DG Rangers and the COAS. But investigating torture – one of the most serious crimes under international law – on a par in gravity with slavery and genocide – should not be a matter of the largesse of the leadership of the very same institution whose members are presumably involved in the crime.

It is significant also that bleeding-heart politicos and pundits otherwise obsessed with the issues of corruption were unable to spot the evident conflict of interest involved here.

Admittedly, something is better than nothing. An investigation, albeit internal, is to be preferred over blatant denial. Now there are encouraging reports in a section of the media that the Rangers may welcome a judicial enquiry. There are strong legal reasons why we need an independent inquiry into all cases of alleged torture and ill-treatment in custody.

The Committee against Torture, the body mandated to oversee the implementation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (ratified by Pakistan in June 2010), has repeatedly called upon state parties to “establish a systematic and independent system to monitor the treatment of persons arrested, detained or imprisoned.”

The Optional Protocol to the Convention – which Pakistan has not signed up to – defines as its purpose under Article 1, the establishment of “a system of regular visits undertaken by independent international and national bodies to places where people are deprived of their liberty, in order to prevent torture and other cruel, inhuman or degrading treatment or punishment.”

To say that Pakistan is a party to the Torture Convention is to tell only half the story. The remarkable thing is that upon ratification the country entered reservations in respect of a number of articles subjecting them “to the Provisions of the Constitution of Pakistan and the Sharia laws”, in what can only be seen as an attempt to water down the country’s substantive obligations. In 2011, Pakistan withdrew some of these reservations to obtain the Generalised System of Preferences (GSP) status with the European Union. However, it might help to recap the initial reservations as they illustrate certain abiding gaps in Pakistan’s domestic legal framework with regard to torture and other forms of ill-treatment in custody.

The reservations entered into included the requirement under Article 12 of the convention that a “prompt and impartial investigation” be carried out “wherever there is reasonable ground to believe that an act of torture has been committed”. A reservation was also made with regard to Article 4 of the convention, which requires that all acts of torture, including complicity and participation in torture, be made criminal offences under domestic law. Further, Pakistan also opted out of Article 14, which obligates states to ensure that the victims of torture are able to obtain redress and have an enforceable right to fair and adequate compensation. Another reservation concerned the obligation to prevent acts of ‘cruel, inhuman or degrading treatment or punishment’ (let us call it ill-treatment), which resemble but do not amount to torture in the strict legal sense.

The element that distinguishes ill-treatment from torture is the absence of the requirement that the treatment be inflicted for a specific purpose – ie, extraction of evidence or a confession, intimidation or coercion of a third party, or as punishment or discrimination. Although it is a matter of some controversy within human rights jurisprudence, a distinction is also made between torture and other forms of ill-treatment based on the severity of the suffering imposed.

On the doctrine of relative intensity, acts such as repeated beatings, mock executions, electric shocks, sleep deprivation and rape would typically (but not exhaustively) constitute torture. International human rights bodies have found violations of the prohibition of ill-treatment in cases involving lack of adequate food, solitary confinement and very poor conditions of detention. Conditions that give rise to ill-treatment frequently facilitate torture so the distinction between the two is often blurred in practice.

Little surprise then that the delegations of Austria and the Czech Republic at the UN found Pakistan’s reservations on various articles of the Torture Convention as incompatible with the Vienna Convention on the Law of Treaties, according to which a party may not invoke the provisions of its internal law as justification for its failure to perform a treaty.

Turning to the domestic legal framework, although Article 14 (2) of the constitution expressly prohibits the use of torture for extracting evidence, the country does not have specific legislation that incorporates the obligation of impartial and independent investigation of alleged acts of torture, or the right to fair and adequate compensation for the victims – just to take two examples. The definition of torture provided for in the constitution is itself restrictive; it fails to cover acts aimed at punishing an individual or intimidating and coercing a third party.

Reference is made at times to sections 339, 340 and other provisions of Chapter XVI-A of the Pakistan Penal Code as covering certain aspects of torture. The said provisions, however, deal with ‘wrongful restraint’ only, and come nowhere near defining the elements of the crime of torture or providing an appropriate penalty. The terms ‘torture’, ‘ill-treatment’, ‘cruel or inhuman treatment’ do not feature anywhere in the penal code or any other law. The domestic jurisprudence on the subject is woefully under-developed.

In sum, not only do we need an impartial and independent inquiry into the circumstances leading to the death of Aftab Ahmad and the treatment experienced by Kehar Ansari, the time is ripe also for a root-and-branch review of our legal framework. It is essential to ensure that all aspects of the international prohibition of torture and ill-treatment in custody are fully reflected at the national level.

As an immediate preventive measure, the authorities could perhaps take a cue from the United Nations Human Rights Committee, which, in one of its general comments, has advised that detainees be held in places officially recognised as places of detention and the “names of persons responsible for their detention be kept in registers readily available and accessible to those concerned”.

To guarantee the protection of detained persons, the committee further stated that the time and place of all interrogations, together with the details of those present, should be recorded and kept available for judicial proceedings.

Torture is one of the worst forms of the abuse of power. And like all abuse of power, it thrives in secrecy and silence.

The author is an independent researcher. Email: adnan.abdulsattar@gmail.com