July 13, 2021
By Rehan Piracha
The Senate has unanimously passed the Torture and Custodial Death (Prevention and Punishment) Bill 2021, setting a punishment of three to 10 years for public officials guilty of torture and custodial deaths.
The European Union (EU) Ambassador to Pakistan and the Amnesty International (AI) has lauded the passage of the bill in the Senate, calling it an important landmark in the country’s implementation of the UN Convention Against Torture (UNCAT).
The bill was moved by Sherry Rehman, the Pakistan Peoples Party parliamentary leader in Senate.
Even the treasury benches did not oppose the bill saying that the government supported this important legislation that was proposed from the opposition benches.
“It is a much-needed bill. It is necessary and urgent,” said the Federal Human Rights Minister, Dr Shireen Mazari, when leave was sought to introduce the bill. The bill was expected to sail through the National Assembly given the support from the treasury members.
Thanking the Senate members for their support in passing her bill, Sherry Rehman said there was currently no existing law in the country which criminalised or explicitly defined torture.
“This bill provides a comprehensive definition of torture, delineating its various constituent elements. Torture by police and other law enforcement agencies is endemic and prevalent in Pakistan. The inhumane practice is so common that it is largely considered a routine part of criminal investigation,” she said.
Rehman said as a signatory to international treaties, Pakistan had an obligation to criminalise torture.
“Torture by police remains widespread due to impunity enjoyed by the perpetrators which in turn is fuelled by socio-cultural acceptance of violence, procedural and legal loopholes and lack of independent oversight of the police,” the Senator said.
She said the bill defined custody and expressly stated that a person shall be deemed to be in custody during search, arrest and seizure proceedings, effectively extending protection against torture to those who were investigated by police officials. Custody also includes “judicial custody and all forms of temporary and permanent restraint”.
What’s in the bill?
The main objective of the bill is to criminalise and prevent custodial torture and death, which are both widespread and common occurrences in the criminal justice system of Pakistan. The bill also aims to facilitate redress to victims and survivors of custodial torture, who predominantly belong to economically and socially disadvantaged groups in society.
Punishment for custodial torture and custodial death
Under Section 3 of the bill, any public servant who commits, or abets or conspires to commit torture shall be punished with imprisonment for a term, not less than three years, which may extend to ten years and with a fine, which may extend to Rs 2 million.
Similarly, any public servant who has a duty to prevent, and either intentionally or negligently falls to prevent the commission of torture shall be punished with imprisonment for a term, not less than three years which may extend to five years and with fine, which may extend to Rs 1 million.
The amount of the fine shall be given to the victim but if the fine is not recovered, additional imprisonment will be awarded to the convict.
In case of custodial death and custodial sexual violence, any public servant who commits, or abets or conspires to commit these offences shall be punished as per law and with a fine, which may extend to Rs 3 million.
Male officials barred from the custody of a female
Under Section 5 of the bill, no female shall be taken or held In custody by a male and only a female public servant can lawfully take a female into custody.
The bill also bars public officials from detaining any person in order to extract information regarding the whereabouts of a person accused of any offence or to extract evidence from him.
Filing of complaint
According to Section 8 of the bill, a person can lodge a complaint about custodial torture before any court.
If a person brought before a court complains that he has been subjected to torture, the court shall record the statement of the person and direct that the person be medically and psychologically examined immediately.
A written report is to be submitted within 24 hours describing injuries, marks of violence or psychological trauma upon the person. If the evidence suggests any form of torture, the court is to forward a copy of the report to the Session Court to take cognizance of the offence. The sessions court shall direct the Federal Investigation Agency to complete the investigation within 15 days.
Suspension/transfer of accused public officials
Under Section 11 of the bill, the sessions court can recommend that a public servant accused of custodial torture should be suspended or transferred to a different location or discontinue to perform any public duty until acquitted by the final appellate court.
Time limit for trial
The bill sets timeframes for investigation, the conclusion of trial and appeal. Under Section 13, the investigation of custodial torture and death shall be completed within 14 days from the date of a complaint is lodged.
Similarly, the trial shall be completed within three weeks from the date of submission of challan before the relevant court. The appeal against a conviction or acquittal of offences should be decided within 30 days from the date of its filling.
Protection for victims
Any person, Including the victim or complainant or any witnesses, who allege that they require protection from a person accused of having committed custodial torture or from any of his associates can file a petition to the court of session. The court has to pass an order on the petition within three days.
EU and Amnesty hail bill
In a tweet, Androulla Kaminara, Ambassador of the EU to Pakistan, congratulated the Senate, Sherry Rehman and Shireen Mazari over the passage of the bill, calling it an important milestone in aligning Pakistan’s Flag of Pakistan legislation with the United Nations Convention against Torture.
In a separate tweet, Amnesty International also praised the bill’s passage in the Upper House.
“The Senate has unanimously passed the Prevention of Torture and Custodial Death Bill, an overdue and encouraging step towards the longstanding campaign to #CriminalizeTorture,” Amnesty said in its tweet.
The rights watchdog called upon the National Assembly to expedite the passage of the bill.
“We urge the National Assembly to prioritize its passage into law, followed by robust implementation in line with the requirements of the UN Convention Against Torture,” Amnesty International tweeted.