Custodial torture has been a controversial issue in the socio-political and legal dialogue in Pakistan. Its prevalent use by law enforcement agencies in Pakistan is a fact that has long since been accepted by society and is often seen as a necessity for the furtherance of interrogation and investigation.
However, Pakistan signed and ratified the ‘Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984’ on 17.04.2008 and 23.06.2010 respectively. The 1984 Convention seeks to make more effective the struggle against torture and other cruel, inhuman or degrading treatment or punishment throughout the world. Article 2 (1) of the said Convention obligates each State Party to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.
Regardless, ‘torture’ or ‘custodial torture’ has not been expressly criminalized in law and jurisprudence of Pakistan in blatant disregard of the Constitution of the Islamic Republic of Pakistan, 1973 and Pakistan’s international legal obligations, regardless of passage of the recent bill through Parliament that prohibits custodial torture. Yet, if we dwell into nuances of the Constitution and various other legal provisions, we might be able to chalk out a legal framework that prohibits custodial torture.
Article 9 of the Constitution guarantees that “No person shall be deprived of life or liberty save in accordance with law”. Considering this, the term ‘life’ has been described by national and foreign superior courts as something more than mere animal existence. By implication, the right to life encompasses a ‘right to a dignified life’ and a ‘right not to be subjected to torture or inhumane treatment’.
Moreover, Article 10 A of the Constitution guarantees that “For the determination his civil rights and obligations or in any criminal charge against him a person shall be entitled to a fair trial and due process.” In addition, it has been held by the Supreme Court of Pakistan that the Constitution provides an unqualified and unconditional protection against ‘self-incrimination’, i.e. Article 13 (b) of the Constitution. In this regard, custodial torture violates both Article 10 A and 13 (b) because it forces the detainee to self-incriminate without been given a fair opportunity to defend himself before a court of law.
Further, Article 14 (1) of the Constitution guarantees right to dignity to every person. Moreover, Article 14 (2) is the only provision in the Constitution that expressly deals with ‘torture’. It is stated that “No person shall be subjected to torture for the purpose of extracting evidence.” It has been held by the Honourable Supreme Court of Pakistan that human dignity encapsulates the notion that every person has inherent equal worth.
Furthermore, Pakistan Penal Code 1860 criminalises acts of criminal force and assault, wrongful restraint and wrongful confinement, acts that cause hurt with intent to extort a confession as well as acts by public servants disobeying the law with intent to cause injury to another person. However, these provisions criminalise some acts that are ancillary to torture, however it falls short of providing a comprehensive legal framework that may cater to all forms of torture or inhumane treatments.
Section 156 of the Police Order, 2002 provides for penalty for vexatious entry, search, arrest, seizure of property, torture, etc committed by a police officer. Significantly, as per the said section, whoever, being a police officer inflicts torture or violence to any person in his custody shall on conviction, be punished with imprisonment for a term, which may extend to five years and with fine.
In addition to Article 1 (1) that defines ‘torture’, Article 2 (1) of the 1984 Convention requires each State Party to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 2 provides for an absolute prohibition on torture via subsection (2) and (3).
Pakistan also signed and ratified the International Covenant for Civil and Political Rights, 1966 (‘ICCPR’) on 17.04.2008 and 23.06.2010 respectively. According to Article 7 of the ICCPR, no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.
Moreover, it was held by the Trial Chamber of the International Criminal Tribunal for Yugoslavia in Prosecutor vs. Furundzija (1998) ICTY 3, 10 December 1998 that the ‘prohibition of torture’ imposes upon states obligation erga omnes, that is, obligations owed towards all the other members of the international community, each of which then has correlative right. The Trial Chamber continued with the argument that, in addition to erga omnes obligation, the other major feature of the principle proscribing torture is that it has evolved into a peremptory norm or jus cogens, that is, a norm that enjoys a higher rank in the international hierarchy than treaty law and even “ordinary” customary rules.
The ‘Torture and Custodial Death (Prevention and Punishment) Bill’ was recently passed by the Senate and is awaiting Presidential assent. Without going into details, it is important for the Bill prohibiting torture in Pakistan to ensure that the definition of torture should encompass both ‘physical’ and ‘mental’ pain and suffering; the Bill should prescribe a method for redressal and compensation for the victim or the victim’s legal heirs in addition to punishment for the offenders; the Bill must also establish an overseeing authority, e.g. commission, ombudsperson etc, to ensure implementation of the prohibition, etc.
Such reform is in consonance with Pakistan’s international obligations. Although the existing domestic legal framework might be interpreted to prohibit custodial torture, but it might fall short of the ‘effective measures’ required in Article 2 (1) of the Torture Convention. Therefore, in order to avoid international responsibility for violating Pakistan’s erga omnes obligations and one of the principles of jus cogen¸ it is imperative for the Government of Pakistan to pass and implement appropriate legislation providing an absolute prohibition on custodial torture.
The writer is a practicing lawyer at Lahore High Court.