June 26, 2024
By Xari Jalil
LAHORE
Two years after the enactment of the anti torture bill in Pakistan, there are still issues regarding its enforcement.
A gap analysis report of the Torture and Custodial Death (Prevention and Punishment) Act 2022 released on Wednesday June 26 to mark the International Day to Support Victims of Torture, examines these deficiencies. The report was released by the Justice Project Pakistan (JPP) in collaboration with the National Commission for Human Rights (NCHR).
Although the Act itself is a milestone in battling torture and aligns with international law that Pakistan has signed and ratified (United Nations Convention Against Torture or UNCAT), there are still gaps in the implementation which this report has identified.
‘Guantanamo Bay’ of Pakistan
Former Senator Farhatullah Babar calls internment centers the ‘Guantanamo Bays of Pakistan’, saying they are the biggest hubs of torture in the country.
“The problem is not just that the law is not enforced in letter and spirit, it is that those who are responsible for the torture are the ones who are most protected,” he said. “They protect each other.”
He referred to when Justice Chohan from the NCHR wanted to visit the NAB detention cells, he was not allowed. He also wrote several letters to the Anti Narcotics Force (ANF) but did not receive any replies.
“When it comes to enforced disappearances there are countless tales of untold physical and mental torture, but there are no statistics, or any written record of how many people have died in the custody of law enforcement agencies,” he said. “These are state secrets. Members of the parliament wanted to visit the internment centers but were discouraged from visiting these centers.
Issues with Enforcement
Belal said once that was done, there must be widespread engagement with different stakeholders including police, the public, and hold interactive sessions with communities such as transgender community, women, even journalists, who occasionally do not recognize that they are victims of torture.
“The definition of torture must be understood and communicated to people,” she said. “Other than that there should be a proper process which is followed.
Despite the law having been passed, only one case was reported under it – that of a transgender person who was a victim of torture.
“A lot of laws get passed with best of intentions, but you need enabling legislation and the delegation of duties for the various departments and ministries involved,” added Sarah Belal. “If you look at the Arc there are different duties and penalties that have been described but the process spans different agencies, such as the Federal Investigation Agency (FIA) and the National Commission for Human Rights (NCHR), but there need to be procedures specified so that the correct process is followed and then these departments have to also interact in a certain way, so that must also be specified.”
The one case that was reported was tried by the Punjab Prosecutor General.
Earlier objections by HRCP
On this International Day in Support of Victims of Torture, HRCP calls on the state to operationalize its anti-torture legislation by instituting the mechanisms necessary to report and address instances of custodial torture, with ample financial, human and technical resources…
— Human Rights Commission of Pakistan (@HRCP87) June 26, 2024
Last year, the Human Rights Commission of Pakistan (HRCP) had also observed that there were certain issues with the law.
Human Rights Commission of Pakistan (HRCP)’s Legislative Watch Cell Report on the Torture Act highlighted 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.
The HRCP also observed that the Act empowered the 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). It said that 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 Only Case
Meanwhile the Punjab Prosecutor General Syed Farhad Ali Shah spoke about the first and only case that has been reported under the law, saying that the incident took place in Kharian and the police had been accused of torturing a transgender person in their custody.
“With our department’s intervention, we helped lodge an FIR against the police itself,” he said while speaking to Vociepk. “I personally declared this a high-profile case. We provided special prosecutors for this and the case is being investigated thoroughly at present.”
Shah said that the Act was relatively new, and there was a lot of room for interpretation, and that unless this was done bare readings did not matter.
“We have signed an MoU with the Punjab Police so we can build ties with them, but with cases that are transferred to FIA, we cannot intervene there as we do not yet have that relationship with them. The FIA has its own prosecutors and our authorities overlap.” Shah said that they have also discussed the issue with Azam Nazeer Tarar, Minister for Law, about building a mechanism and SOPs so that the Punjab department can monitor FIAs investigation as well as the trial prosecution. He said they were seeking an amendment in this regard.
“From trial courts to high courts and the Supreme court, criminal prosecution service must be provided to ordinary people,” he said.
International Standards
One of the biggest issues with the Act is that it still does not comply with international standards.
The JPP report also highlights that the Torture Act also falls short of full compliance with international standards on torture laid down by the UNCAT and other international instruments and jurisprudence in some respects, the most prominent of them being the omission of psychological pain and suffering.
Other glaring shortcomings include vagueness in complaint and investigation procedures, incoherence with international law in medical examination procedures, absence of provisions for non-refoulement, lack of suo moto investigation initiation, and inadequate remedies. Moreover, the Act does not mention the Istanbul Protocol, the Minnesota Protocol or the Mendez Principles, which should be explicitly referenced to ensure their use in understanding and application of the law.
Penalties under the Act
“International standards of investigation, such as medical procedures for example, must be part of this law,” said Sarah Belal. “We have enacted the law and this is a huge milestone for Pakistan, a step in the right direction. But if we do not follow the criteria that is required then ultimately it will only set us back.”
Although the Act defines torture as a ‘cruel, inhuman, and degrading treatment’ (CIDT), it does not include any provision for preventing or penalising such acts. The Act also does not provide punishments for torture and custodial death itself but falls back on already stipulated punishments in Pakistan Penal Code, 1860 (PPC) which do not correspond completely with the nature or gravity of the crime of torture and custodial death.