Pakistan ratified the United Nations Convention Against torture in 2010, but to date no concrete steps have been taken to enact a law. A draft Anti Torture Bill that purports to curb torture is a mere eyewash to dodge pressure from the international community. In Pakistan, the justice system is riddled with gaping problems related to fair trial and with conviction after conviction based on statements extracted through torture or other forms of ill-treatment. A staggering proportion of the accused have reported facing custodial torture, which is a serious indictment of due process of law in Pakistan and the fairness of its criminal justice system.
The investigation process in Pakistan has caused miscarriage of justice in several cases, most recent being the case of Aftab Bahadur Masih. He was implicated in the crime by his co-accused Ghulam Mustafa, who later maintained that he was tortured into “confessing” to Aftab’s involvement in the crime while in police custody. Ghulam was willing to sign a statement declaring Aftab Bahadur’s innocence before his sentence was carried out, but jail authorities in Multan prevented Aftab Bahadur’s lawyers from getting this statement signed (Read more here). Aftab Bahadur was sent to the gallows on 10 June 2015, despite request for mercy from different rights group. Before his death, Aftab Bahadur wrote a heart-wrenching letter depicting his trials and tribulation at the hands of the criminal justice system. (The letter can be read here.)
Another sad tale in the offing is that of Shafqat Hussain, who was due to be executed on June 8. His execution is being delayed due to pressure from international rights groups. Shafqat’s lawyers have stated that Shafqat was 14-years-old back in 2004, when he was burnt with cigarettes and had his fingernails removed until he confessed to the killing of a child. According to Reprieve, an international NGO working for abolishment of the death penalty, Shafqat was brutally tortured for 9 days and eventually made a false confession to make the abuse stop.
Custodial torture in Pakistan is treated as an inevitable part of crime investigation. Investigators adhere to the notion that if enough pressure is applied, the accused will confess. Nepotism, corruption, torture, misuse of power, and illegal detention form the crux of what is the criminal justice system in Pakistan. Torture is often used to extract self-implicating confessional statements from suspects who are often innocent. In the absence of modern forensic tools, the Judiciary and the prosecution rely upon confessional statements. These statements are never crosschecked against available circumstantial evidence, resulting in making torture the only tool available to the police. The criminal justice system in the country is therefore no more an aid or a means to seek justice; for many it is a labyrinth from where there is no escape.
Each year AHRC documents many cases of torture. The barbarity of the act appears to be increasing every year. For instance, take the case of Tariq Mehboob, a political activist who was arrested by Pakistan Rangers on the suspicion of abetting target killings. Within hours of his custody, Tariq died of wounds sustained due to torture. The autopsy revealed torture marks on his whole body, including marks of holes drilled into his knees. The police have refused to file case against the Pakistan Rangers. (For more, see here)
Another case reported by AHRC involves 24-year-old Syed Faraz Alam, who was tortured so that he would confess to the crime of murder and divulge names of activists of MQM, a political party in Sindh. On 10 January 2015, his dead body was shifted to Jinnah Post Graduate Medical Centre (JPMC), a hospital under the Federal Government. When the post-mortem was conducted, it was found that there were many injury marks on his body, including on his back. There was evidence that he had sustained electric shocks on his genitals, his anus, as well as assorted torture marks to his legs. (Read more here)
According to the AHRC and the Human Rights Commission of Pakistan, since 16 December 2014, 150 people have been executed. Convictions in Pakistan are highly unreliable because its archaic criminal justice system barely functions.
Though police torture is a direct infringement of every individual’s constitutional right, not to be subjected to torture for the purposes of extracting evidence under Article 14(2) of the Constitution of Pakistan 1973, the right is not guaranteed; as violators are not prosecuted. Further to this, Pakistan has signed and ratified international treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the United Nations Convention Against Torture (UNCAT), both of which emphasize the intention of the government of Pakistan to enforce the prohibition of torture. The unlawful actions of the police force and intelligence agencies and a failure to prevent such actions continue to pose an on-going threat to the lives, safety, and liberty of the citizens of Pakistan. Many formal legal protections, for example those provided under the Penal Code against police abuse, are often not enforced.
Since 2010, the AHRC has been lobbying parliamentarians to draft and enact a law against torture. The Ministry of Human Rights, under the auspice of Senator Farhat Ullah Baber, made several amendments in the initial draft as prepared by the AHRC and its partner organizations, rendering it toothless. The parliamentarian has deliberately created a façade to fool the international community into believing that the issue has finally been resolved.
The amended draft has excluded the armed forces from the ambit of accountability in cases of torture, which speaks volumes about the true intentions of the parliamentarian. For example, the definition in the Senate Committee Bill states, “Torture means an act committed by any person, including a public servant”. The wording is ambiguous. Perhaps the drafter does not know the difference between torture and violence. By using the term “any person” the legislators are including a common man within the ambit of what is necessarily an act committed by state institutions and law enforcement agencies. By creating ambiguity between the two terms, the legislators have rendered the law toothless against the perpetrators of torture. Furthermore the definition of law enforcement agency has been omitted and the more generic term of public servant has been used instead. (Read more here)
Presently, for victims of torture who successfully persuade a court that the police has abused them, a judge may order any of three remedies:
- Reinvestigation of any criminal charges against the victim (for victims formally charged with a crime),
- Monetary compensation, and
- Criminal charges against the accused police officers.
However, cases alleging torture are extremely difficult to litigate, and victims often face barriers even to lodge a complaint. Pakistan does not have any independent state-sponsored mechanism for investigating or documenting allegations of torture. For example, the Criminal Procedure Code and the Constitution each allow for prisoners to petition for the writ of habeas corpus. Neither of these habeas provisions refers to the other, and the procedural requirements of each are different from those of the other. Moreover, for habeas applications to be successful, lawyers must also bring charges, under the Penal Code and the Police Order 2002, against the police officers concerned. As a result of this legislative disarray, few victims—or their lawyers—have the resources to effectively litigate torture cases.
The government’s reluctance to enact law is a deliberate attempt to give impunity to the law enforcement agency on the pretext of managing the law and order situation. The government is also indisposed to reforming the police, as the institution is used to serve ulterior political motives of the ruling party and its cronies; the police have been reduced to mercenaries.
The Military also does not want to commit to an anti torture law that will criminalize torture and render illegal the torture cells maintained by the military agencies in the guise of national security.
Independent oversight of the police must be strengthened to ensure that abuses will be fully investigated and in order to change police culture. Police leadership must communicate to all officers that no form of abuse or retaliation will be tolerated. Modern methods of investigation should be implemented to discourage use of torture as an investigation tool.
It is high time that the Pakistan State earnestly enacts and implement an anti torture law to curb the menace once and for all.
