Daily Times

Whilst driving up the Mall Road, Lahore, towards Cantonment, there is a picket near the Mian Mir Bridge, manned by both the Punjab Police and the Military Police. I often wonder, if God forbid, I ever needed help, who would I approach? The answer always is: not the Punjab Police.

Years ago, we lived in London. One day I was at home, alone with my younger brother, who is deaf. My mother had hung the laundry out to dry before she left. In typical London fashion, it started to drizzle. Fully conscious of my mother’s hard work, I ran out to retrieve the clothes. As I turned towards the kitchen door, I saw it being slammed shut in my face by my six-year-old brother. I ran towards the front but that door was locked. My brother had positioned himself on the front window sill and was having a ball seeing my panic. I went next door and called 999. Within minutes the police arrived. After I had explained the scenario to them, they called the Fire Brigade. Using the ladder, one policeman climbed through an open first floor window and let me into the house. Somehow, I have never been able to see the same scenario with our police.

A lot has been written on custodial torture. Human rights organisations have been asking for the implementation of the United Nations (UN) Convention Against Torture, which Pakistan has ratified. One perception was that the low salaries of our policemen contribute to their brutal attitude but it has been over two years since the salaries were increased. No change. We can harp on and on about the training of our police, their sensitisation, their political allies, but we do not focus on a very important piece of this jigsaw: the magistrate.

The law vests the magistrate with an enormous amount of power, which can be exercised to contain, if not downright prevent, the incidence of custodial torture. Our constitution gives us a basic fundamental right of being produced in front of a magistrate within 24 hours of arrest. The problem starts when the magistrates, blindly and without application of a judicial mind, give a person into police custody on physical remand. It worsens when this is done without ensuring the accused is produced in court or before him. And it hits rock bottom when the physical remand is blindly and mechanically extended, even when there is allegation of torture and in most cases obvious torture.

The Rules and Orders of the Lahore High Court specifically direct the magistrate to satisfy himself as to the necessity of remand, accusation against him is well-founded, there are good and sufficient reasons for remanding the accused to police custody instead of his own, he must examine the case-diaries and previous orders, if any, and most important of all, the accused must always be produced before him. The accused should also be given an opportunity to raise an objection. However, it has frequently transpired that remands are not given in courts and thus the accused can neither have access to a lawyer or a friend to resist remand on his behalf. Such a practice severely violates the fundamental rights of a person and not only does it need to be condemned but those who indulge in it need to be disciplined in accordance with the law.

How often is all this done is a moot point but looking at the growing incidence of custodial torture and the fact that remands are given in a mechanical fashion, the answer is self-evident. The whole purpose of separating the executive from the judiciary was to get rid of political and bureaucratic influences and because the remands were not being granted properly by the Executive Magistrates. But unfortunately, a sizeable majority of the magistrates are still partial to the police and the executive of the district, not to mention the political players.

It has been held again and again by the superior courts that the magistrate should not grant a remand automatically; every time the police ask for it and any remand granted, without the accused being produced before him, would make that remand and custody patently illegal.

There have been times when I myself have argued with my own conscience that torture is necessary, especially in heinous crimes like terrorism, rape, kidnapping for ransom, brutal murders, and so on. But my conscience, whilst acknowledging the gravity and seriousness of my arguments, consistently retorts: but then where and how do you draw the line? To this I have no answer. The problem is that when we start to condone torture or become complacent towards it, we risk losing our very basic fundamental rights. In advocating and supporting torture against the perpetrators of such heinous crimes, we give a free reign to our extremely torture-competent police to use the same techniques and methods to rope in and implicate innocent citizens for personal and political gains and vendettas.

Already we live in a country where there are no fundamental rights, except enforcement through the courts. We are guilty unless and until we prove ourselves innocent. The Punjab Police topped the list of torture-savvy police amongst all the provinces in 2006. The latest figures are unavailable but I doubt that they would be much different now, despite our own law minister having been tortured in 2003. We cannot change a mindset that is so deeply rooted in our law enforcers. We cannot change the fact that all the key posts of the police in a district cannot be filled without the consent of the political movers and shakers there.

What we can change and ensure is that our magistrates rise up to the challenge and ensure that there is no custodial torture within their jurisdictions. What we should expect from the honourable superior courts is our freedom and other constitutional guarantees and in the process we have a right to expect that any magistrate who violates the law, disobeys the dicta laid down and is oblivious to the rules and regulations of the high courts should be taken to task. After all, justice demands that it should not only be done, but be seen to be done. Most of us know and are unable to trust our police, but at least let us trust our magistrates.

The writer is an advocate of the high court