The International Day in Support of Victims of Torture was observed on June 26. Though Pakistan is a signatory to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and successive governments have made commitments in this regard, no law is in the field to criminalise custodial torture.

The UNCAT was adopted and opened for signature and ratification by the UN General Assembly on Dec 10, 1984. The Government of Pakistan signed the convention on April 17, 2008, and ratified it on June 23, 2010, during the government of Pakistan Peoples Party.

However, an Optional Protocol to UNCAT, which was adopted by the General Assembly on Dec 18, 2002, and that entered into force on June 22, 2006, has so far not been ratified by Pakistan.

The Optional Protocol is aimed at establishing 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 or degrading treatment or punishment.

Article 14(2) of the Constitution of Pakistan prohibits torture in custody. “No person shall be subjected to torture for the purpose of extracting evidence,” the Article states.

In Pakistan Penal Code, while no definition of torture is given, section 337-K prohibits causing of hurt for extracting confession and this offence is punishable by up to 10 years imprisonment.

Moreover, in Khyber Pakhtunkhwa the Police Act, 2017, was enacted in early 2017 and through it the Police Order 2002 was replaced. Section 119 (d) of the Police Act provides that whoever, being a police officer inflicts torture or violence to any person in his custody shall on conviction be punished and sentenced up to five years imprisonment with fine.

During previous government, a move to enact an exclusive law on torture and custodial deaths in line with UNCAT could not be materialised. In March 2015, the Senate of Pakistan had passed the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill, 2015, which was tabled by Senator Farhatullah Babar. In the constitutionally stipulated 90 days the said bill could not be passed by the National Assembly under Article 70 of the Constitution.

On Feb 13, 2017, the Senate passed a resolution for referring the said bill to a joint sitting of the Parliament, but it could not be passed till then National Assembly completed its five-year tenure last year. Under Article 76 of the Constitution, a bill pending in the National Assembly, shall lapse on the dissolution of the Assembly.

The Statement of Object of the said Bill provided that ratification of UNCAT required enabling legislation to reflect the definition and punishment for “torture”. “It is necessary after the ratification of the Convention that domestic laws of our State are brought in conformity with the Convention,” it was added.

In December last year, federal minister for human rights Dr Shireen Mazari had stated that the Anti-torture Bill would be again tabled in National Assembly by the end of Jan 2019. She had said that her ministry had done comparative study of two proposed bills lying with the interior ministry and would be soon sent to the Cabinet Committee on Legislation. However, so far the proposed bill could not be tabled again in the Assembly.

The previous Bill had defined torture as “an act committed by any person, including a public servant, or at the instigation of or with the acquiescence of any other person, with specific intent to inflict physical or mental pain or suffering, not incidental to lawful sanctions, upon another person within his custody, for the purpose of: (i) Obtaining from that person or some other person any information or a confession; or (ii) Punishing that person for any act he or a third person has committed or is suspected of having committed; or (iii) Intimidating or coercing that person or a third person; or (iv) For any other reason based on discrimination of any kind; or (v) Harassing, molesting, or causing harm whether physical or mental to a female for any of the above purposes.”

It proposed sentence from five to 10 years with fine of up to one million rupees for those who commits, or abets or conspires to commit torture. Furthermore, any public servant, or any other person who has a duty to prevent and either intentionally or negligently fails to prevent the commission of torture shall be punished with imprisonment for a term up to five years but not less than three years with fine of up to Rs 500,000. The Bill also recommended sentence of life imprisonment with fine of up to Rs3 million for the offences of custodial death or custodial rape.

Legal experts believe that though the Constitution of Pakistan prohibits custodial torture, it is an acceptable phenomenon here specially when a suspect is remanded into custody of an law enforcing agency.

Under Section 167 of the Code of Criminal Procedure, a suspect can be remanded into custody of police for 15 days by the concerned magistrate. Moreover, section 21 E of the Anti-Terrorism Act 1997 empowers the anti-terrorism court to remand a person detained for investigation to custody for maximum 15 days, but in case the investigation officer proves that further evidence may be available the court may remand the suspect for maximum 30 days in custody.

Similarly, under section 24 (d) of National Accountability Ordinance, a suspect should not be remanded in the custody of National Accountability Bureau for more than 90 days. However, the court may remand a suspect to custody not exceeding 15 days at a time and for every subsequent remand the court shall record reasons in writing copy of which shall be sent to the High Court.

A non-governmental organisation, Justice Project Pakistan, in one of its reports pointed out that one of the primary obstacles to realisation of the norms enshrined in UNCAT is changing an institutional culture that legitimises torture and perpetuates it, with little or no awareness of human rights violations inherent in them.

It claims that currently victims have to approach police to register complaints of torture. “Most cases do not get registered and instead the complainants are harassed. Even if a complaint is registered, the courts will order the police to conduct an investigation against its own members, which results in no convictions,” the report states.

Published in Dawn, July 1st, 2019