May 31, 2023
While the Torture and Custodial Death (Prevention and Punishment) Act 2022 indeed appears to be a progressive law, concerns regarding its application need to be amended.
This was noted in the Human Rights Commission of Pakistan (HRCP)’s Legislative Watch Cell Report on the Torture and Custodial Death (Prevention and Punishment) Act 2022, released on Tuesday.
Acknowledging that the legislature contains a fairly comprehensive definition of custodial torture, the report however found that it differs from the United Nations Convention Against Torture as it does include mental torture within its scope. Furthermore, the definition does not employ gender-neutral terminology – it refers to survivors as ‘him’, thereby discounting women and trans persons who are also at risk of custodial torture.
The HRCP also observed that the Act empowers the Federal Investigation Agency (FIA) as its sole investigative authority in relevant cases. According to the FIA Act 197, the Agency’s jurisdiction extends to all public servants (including judges, military and police officials, and other public office bearers). However, questions should be raised as to how the law will ensure accountability against vested officials, many of whom constitute the system surrounding custodial torture.
The law also does not provide for resources or funds, which may severely impede the implementation of the Act. It was noted that, despite the enactment of the law in November of last year, the FIA has yet to establish a wing dedicated to investigating custodial torture as of the publication of the report. This may indicate that either the implementation has yet to be initiated or is proceeding at a glacial pace.
The report further states that under section 5 of the Act, the FIA will conduct investigations under the supervision of the National Commission for Human Rights (NCHR), however, it remains unclear how the Commission is expected to carry out the supervision. The law also does not allocate any additional funds or resources to the Commission to perform this function. Furthermore, the NCHR’s jurisdiction extends to the Islamabad Capital Territory (ICT), and therefore it cannot supervise investigations in cases outside this area.
The HRCP expressed due concerns over the Act’s reliance on existing punishments in the Pakistan Penal Code (PPC), which fails to account for and recognize the unique nature of custodial torture. Custodial deaths are charged under section 302 of the PPC which carries the death penalty. In addition to its checkered use throughout Pakistan’s history, capital punishment stands in direct conflict with the country’s international obligations to prohibit torture and the use of cruel, inhuman and degrading punishment in the first instance.
The report also noted that section 11 of the Act, which states prescribes punishment for mala fide complaints, will institute coercion and harassment of complainants.
- The HRCP called for enhancing the legislation’s effectiveness from a human rights lens by:
- empowering the NCHR to investigate custodial torture complaints;
- empowering provincial human rights commissions to supervise investigations carried out by FIA;
- establishing separate, standalone penalties for offenses in the Act;
- removing punishment for mala fide complaints;
- expanding the definition of torture to include mental trauma (in line with the definition contained in the UN Convention Against Torture);
- replacing the word ‘victim’ to ‘survivor’ to shift societal and legal narratives surrounding victims’ perceived lack of agency;
- providing rigorous training and sensitization of public officials on the provisions of the Act;
- introducing police reforms to facilitate effective implementation of the Act, and;
- addressing procedural and legal lacunae, delayed prosecution, case backlogs, and public mistrust in the criminal justice system to minimize room for manipulation of the law.