An ongoing effort since 2009, the freshly drafted Torture and Custodial Death (Prevention and Punishment) Bill is commendable for a number of reasons, one of which is its attempt to closely follow international commitments
No person shall be subjected to torture for the purpose of extracting evidence.
Article 14 (2) of the Constitution of Pakistan 1973
A couple of weeks ago I was at a local police station accompanying a client in a case. Sitting in an official’s room, I saw three or so police officers slap a boy, 13 or 14 years of age, into the office. The case was a minor one. The boy had hidden kites in his house and the police had caught wind of it. They had brought him down to the station to reveal who he had bought the kites from. The boy wouldn’t speak. The official then spoke. “I know how to speak to you in Urdu, and I know how to speak to you in English. I know how to swear as well and if you do not tell me who you bought these kites from, I know of other ways to speak to you.” The boy, like me, presumed a threat of violence and agreed to disclose the information. It was that easy for the official to say it. And until two days ago, it was probably that easy for him to act on the threat.
For a country that is a signatory to the International Covenant on Civil and Political Rights, the United Nations Convention Against Torture and is generally bound by the principles of customary international law and its own Constitution, Pakistan needed to enact an anti-torture law over a decade ago.
In any case, you don’t need too many statistics or go very far into Pakistan’s trajectory to citizens’ tussle with custodial torture, deaths and violence. Just two years ago, a man named Salahuddin was the victim of a custodial death. The matter was closed and those who killed him live in impunity. Thousands of Salahuddins suffer the practice every day. It is in his memory and many other Salahuddins’ that the Senate’s decision to pass the Torture and Custodial Death (Prevention and Punishment) Bill, 2021 is praiseworthy and necessary.
An ongoing effort since 2009, this freshly drafted Bill is commendable for a number of reasons, one of which is its attempt to closely follow international commitments. First, the Bill has been introduced in relation to actions committed by public servants. However, it fails to address the State’s obligation under Article 4 of the United Nations Convention Against Torture to criminalise torture. The member in charge of the Bill concedes this. To date, Pakistan has not included torture among offences in its criminal code.
Second, it introduces custodial sexual violence as an offence and imposes penalties for custodial deaths. Third, it declares statements extracted through torture inadmissible and aims to penalise public servants who knowingly use such information. All these offences are non-compoundable and non-bailable. Additionally, the Bill mandates the transfer or suspension of public servants accused of an offence under the law. The most positive provisions seem to be first, a time limit imposed on the investigation of an offence under the law, assuming that it is in fact respected and second, special protection for victims who have complained of torture under the law.
Under the Bill, no person is allowed to detain a person to extract information regarding the whereabouts of a person accused of any offence or to extract evidence from them - fragile fathers brought to police stations, petrified young brothers beaten black and blue and aging mothers made to sit with strangers all night – all to extract evidence or where the accused has gone. This is what comes to mind when one thinks of the necessity of such a provision; it is crucial to address such commonplace occurrences in Pakistan.
However, what is amiss is the penalisation of ‘cruel, inhumane and degrading treatment’. Prohibited by the Universal Declaration of Human Rights, the United Nations Convention against Torture and the International Covenant on Civil and Political Rights, such treatment while offensive to victims’ dignity does not quite come up to the level of torture. However, it is of paramount importance nonetheless.
Cruel, inhumane and degrading treatment can include psychological pressure during interrogation, cruel detention conditions or use of restraints such as bar fetters. The use of bar fetters, for example, is widely accepted in Pakistan. Only a few years ago, activist Farooq Tariq had petitioned the Lahore High Court requesting that the bar fetters used to imprison Okara leader Mehr Sattar be removed. Elsewhere in the world, the use of bar fetters has been recognised as degrading, inhuman and cruel punishment. Pakistan regrettably lags behind. Today, its Prison Rules inherited from a colonial administration continue to accept this as a valid form of punishment. The new Bill, in closely imbibing international obligations, does not address two very crucial aspects.
This law is thus a mix of hits and misses; the hits are worthy of celebration for being a stepping stone. But even with this law and the introduction of new legal obligations, definitions and penalties, a fundamental question remains: Does the State have the will to prosecute its own for the crimes they commit? Just two years ago, the State could not tolerate the artistic expression of police brutality at an art exhibition in Karachi. Today, one can only hope that there is a greater willingness to acknowledge mistakes than to hush their mention. With the enactment of this law, one can only hope that no official is able to get away with brutalising citizens ever again.
The writer is a lawyer. She tweets at @noorejazch