Senator Sherry Rehman introduced a bill in the Senate of Pakistan on Feb 10 for enacting a long-awaited law to criminalise custodial torture and custodial sexual violence. Despite commitments made by Federal Minister for Human Rights Dr Shireen Mazari on different occasions for making a law on the subject the response of the government is so far lukewarm in this regard.

Human rights bodies and activists have attached high hopes with the tabling of the Torture and Custodial Death (Prevention and Punishment) Bill 2020 by Senator Sherry Rehman of PPP and they expect that this bill would not face the fate of an earlier bill – the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill, 2015 – introduced by ex-senator Farhatullah Babar.

The Senate had passed the said bill in March 2015. However, in the constitutionally stipulated 90-day period the bill could not be passed by the National Assembly as required 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 the then National Assembly completed its five-year tenure in 2018. Under Article 76 of the Constitution, a bill pending in the National Assembly, shall lapse on the dissolution of the assembly.

Pakistan is signatory to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT), but so far 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 Pakistan Peoples Party government.

An Optional Protocol to UNCAT, which was adopted by the General Assembly on Dec 18, 2002, and had 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 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.

The Statement of Object of the present bill states: “Cases of custodial violence, torture and death continue to proliferate despite its prohibition under Article 14 (2) and Article 10 of the Constitution, which forbid arbitrary arrest and detention.”

“Additionally, Pakistan ratified the United Nations Convention Against Torture and other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) and the International Covenant on Civil and Political Rights (ICCPR) in 2010, both of which prohibit torture and other acts of cruel, inhuman and degrading treatment,” the bill states.

It proposes sentence from three to 10 years with a fine of up to two 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 from three to five years and a fine of up to Rs1 million.

This bill also recommended life imprisonment with a fine of up to Rs3 million for the offences of custodial death or custodial sexual violence. It has now become an open secret here that the moment a suspect is remanded into physical custody of any law enforcing agency, including police, by the concerned magistrate it is understood that he would be tortured during that period.

The concerned courts are empowered to remand an accused into custody of police or any other law enforcing agency for different durations under different laws.

Under Section 167 of the Code of Criminal Procedure (CrPC), an accused can be remanded into custody of police for 15 days by the concerned magistrate. However, if a suspect is a female, the magistrate shall not, except in cases of murder and robbery supported by reasons to be recorded in writing, authorise the detention of the accused in police custody, and the police officer making an investigation shall interrogate the accused in the prison in the presence of an officer of jail and a female police officer.

Moreover, section 21-E of the Anti-Terrorism Act, 1997, empowers the anti-terrorism court to remand a person detained for investigation into 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.

Article 14(2) of the Constitution provides: “No person shall be subjected to torture for the purpose of extracting evidence.”

While no definition of ‘torture in custody’ is given in Pakistan Penal Code (PPC), section 337-K of the Code prohibits causing hurt for extracting confession and this offence is punishable with up to 10 years imprisonment.

The Police Order, 2002, prohibited torture in police custody through section 156, which provided that whoever, being a police officer, inflicts torture or violence on any person in his custody, shall on conviction be punished with imprisonment for a term which may extend to five years and fine.

In Khyber Pakhtunkhwa, The Police Order was replaced with Police Act, 2017. Through section 119 (d) of the Police Act, the previous provision related to torture in police custody was retained. Furthermore, section 176 of CrPC empowers a judicial magistrate to inquire into death of a person in police custody. The magistrate holding such an inquiry shall record the evidence taken by him in connection therewith according to the circumstances of the case.

Experts on the subject believe there should be an independent oversight body for keeping an eye on such practices of custodial torture. They say that the present bill is of immense importance as it would be applicable to all law-enforcing agencies across the country.

Published in Dawn, February 17th, 2020