Anti-torture law

Pakistan became a signatory to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in April 2008 and ratified it in June 2010 with certain reservations which were later withdrawn in 2011.

Being a party to the convention, Pakistan is under an international obligation to introduce a legislative framework to implement various provisions which it has failed in. In 2017, the United Nation’s Committee Against Torture (CAT) after reviewing Pakistan’s compliance report issued Concluding Observations which emphasized on the need to introduce legislation on prohibition and criminalization of torture.

This year, Pakistan is again supposed to submit its report on the implementation of the convention and recommendations of CAT. This article is an attempt to draw attention to some of the important aspects of this significant international law obligation.

Article 14(2) of the constitution prohibits the use of torture only for the purpose of extracting evidence and sections 339, 340 and 349 of the Pakistan Penal Code (PPC) criminalize some acts ancillary to torture in a general way while ignoring core elements of torture such as mental suffering as prescribed in the definition of torture under Article 1 of UNCAT.

Likewise, Article 156 (d) of the Police Order, 2002 prescribes penalty for inflicting torture to any person in custody but this too fails to provide any definition of torture at all. Moreover, the implementation of the Police Order, 2002 remains ineffective as there is not a single precedence of its application while cases of custodial torture are being reported on daily basis. According to the HRCP’s media monitoring in 2017, a total of 47 cases of violence and torture occurred in Pakistani jails, in which 32 men lost their lives, and one woman and 21 men were tortured. Besides, the case of Rafiullah alias Amir, who was beaten and paraded naked in Peshawar last year, highlights the petrifying instances of police brutality in the country. Similarly, the prominent case of Salahuddin Ayubi in 2019 is just one of the many incidents where victims have died in police custody.

The Police Order, 2002 is also problematic as its scope of application is limited to police officers and does not extend to other public officials. In addition, it is only applicable in Punjab. Thus, a lack of accountability has fostered a culture of impunity among law enforcement agencies.

Conversely, in 2016, Pakistan submitted its first Initial State Report; seven years after ratification of UNCAT. The report depicted that torture was being effectively prohibited, prevented, investigated and prosecuted under the existing legal framework. This was incorrect and appeared to be an attempt to muddle the fact that nothing had been done to combat the endemic of torture in the country. The report further stated that the pending draft legislations on the prohibition and criminalization of torture before parliament were under consideration; that too was incorrect.

Recently, a Torture and Custodial Death (Prevention and Punishment) Bill, 2020 was introduced by Senator Sherry Rehman. It was approved by the Senate Functional Committee on Human Rights in July 2020 followed by a report presented by the Senate committee in February 2021. The proposed bill holds great significance as it provides a clear and inclusive definition of torture under section 2(h) which encapsulates physical as well as mental torture in accordance with definition of torture under Article 1 of UNCAT. As per section 3 in compliance with Article 4 of UNCAT, the Bill expressly criminalizes and provides strict penalties for all acts of torture as well as custodial death and sexual violence by law-enforcement agencies for the first time in the country. It also provides penalties for those public servants who have been negligent in performing their duties to prevent torture as well as for those who incite or instigate the torture of any person.

The inclusion of custodial sexual violence provides protection to vulnerable citizens in police custody, irrespective of their gender, from all forms of sexual violence that are not envisaged in the traditional definition of rape. Furthermore, it recognizes the need for an effective compliant mechanism in accordance with Article 13 of UNCAT; thus, it establishes a comprehensive complaints and investigative procedure under section 8 where the victims of torture can lodge a complaint before the Sessions Court which can direct FIA to investigate the matter and present a report within a prescribed period of time with the oversight from the court and the National Commission of Human Rights.

This mechanism is an adequate, just and impartial approach to combat torture as it eliminates the role of police officials to make arrest without warrant and initiate investigation into the complaints of torture lodged against the police. Not only that, the proposed law prohibits the detention of any person for the purpose of extracting information or evidence about the accused person under section 5 which is an additional measure for citizens under section 167 of the Criminal Procedure Code.

It could be said that the Bill is fundamentally in conformity with the provisions of UNCAT. However, it is yet to be passed by both the houses of parliament. Keeping in mind the rapid increase in cases of torture and the state’s international obligations, it is crucial for the government to adopt this legislation to fulfill its promise towards the international community as well as its vulnerable citizens who continue to face acts of torture by law-enforcement agencies.

The writer is a practising lawyer, legal researcher at Lahore School of Law, and a human rights activist.

Email: shehr94@gmail.com