Daily Times

It can be agreed that all the political parties tow the same line when it comes to amending major criminal laws; they should be humane and just. However the legislators have time and again proved that they are in fact, incapable of that. This is evident from their reluctance to pass laws regarding women’s rights, protection of minorities, enforced disappearance and free speech.

However, Parliament was presented with one such opportunity to pass a law that would revolutionise the criminal justice system and received broad political support; the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill. In fact, it was passed in the Senate, yet it still lapsed in the National Assembly. Hence this law was not enacted. Now the Bill remains forgotten.

Not all hope is lost as Dr Shireen Mazari has reiterated that she will be tabling an anti-torture bill. This issue has reached its eleventh hour and pushing it through has been an ominous task, for some odd reason. Here’s to hoping it won’t be for her.

An inquiry was initiated by the National Commission for Human Rights on conclusive signs of police torture from 2006 to 2012. In 1424 of 1867 cases examined by the Faisalabad District Standing Medical Board, there were conclusive signs of torture. A report was published in this regard to bring to light the desperate need for reform in police accountability and enactment of an anti-torture bill.

An anti-torture act would criminalise torture which tragically is not a specific penal offence in Pakistan. Under the current law, the general law on hurt in the Pakistan Penal Code is still used and the provision under the Police Order penalising police officers has been cast aside.

If a bill criminalising police torture is passed, it will have a snowball effect that will drastically change the way the criminal justice system in Pakistan operates

Under the current procedure, if one takes the brave step to stand up and take legal action against the police they will either be forced to agree to a compromise and withdraw their complaint or have to repeatedly keep filing applications in court. This course of action is undoubtedly taken knowing that the police will threaten, harass and, possibly even torture you further. Further proving that an anti-torture act is necessary.

If such a bill is passed, it will have a snowball effect that will drastically change the way the criminal justice system in Pakistan operates. Those who have been harassed and abused by the police will finally have a voice. Those possibly convicted under confessions obtained through torture will finally have hope of receiving justice. Those who were forced to be eye witnesses will no longer have to live with the threat of the police looming over them. Those forced into giving bribes can finally stop.

We are now a nation traumatised and resentful of its police force and reluctant to receive support from them because of this epidemic. The snowball effect will continue within the police force as well, as it will pressure them to change their archaic ways of investigating and modernise the way they conduct themselves. Through this law, all the ‘bad seeds’ in the police force will be weeded out, paving the way for more determined and competent police officers.

The anti-torture act will need to be effective. To achieve this it will need to emphasise that it is a criminal offence punishable by imprisonment. It will need to elaborate that if found accused of the offence, the officer will be suspended from service and terminated if found guilty. The officer will no longer receive any benefits for their time in service and will not be able to receive employment in the civil service. The investigation needs to be conducted by an impartial third party. This law should extend to not just the police but any government agency with the power to conduct criminal investigations. The procedure followed should also be consistent with the laws stipulated under the Code of Criminal Procedure unless necessary to divert from.

Apart from Pakistan’s international obligation on criminalising torture, implementing legislation against torture is our fundamental right. Article 14(2) of the Constitution of Pakistan specifically states, “No person shall be subjected to torture for the purpose of extracting evidence.” This provision of the Constitution needs to be given force and the anti-torture bill is the only way to rightly enforce this fundamental right.

I am not here to be critical of the police nor am I of the opinion that they are not necessary. I am only saying that there is a problem within the police force and that only through solving this problem can the justice system move forward towards actually doing what it is meant to do; uphold justice.

It is hoped that Dr. Mazari is successful in having the bill enacted with the support of the NCHR. There are currently 141 countries including Pakistan that have reports of torture. This paints a rather bleak portrayal of the human rights situation in the country. This cannot be changed with just a snap of the fingers; but Parliament can take the initial and much needed step of criminalising torture.

The writer is a criminal lawyer and an advocacy officer at Justice Project Pakistan

Published in Daily Times, February 14^th 2019.