PAKISTAN- Anti Torture
Bill presented in Senate will fail to deliver
A Statement by the
Asian Human Rights Commission
On 21 January, the Senate Standing
Committee on Interior and Narcotics has unanimously adopted a draft
anti-torture bill. PPP Senator Farhatullah Babar moved The Torture,
Custodial Death and Custodial Rape Bill, 2014, last August and the Chairman Senate
referred it to the Committee. The objective of this Bill is to prevent and
protect all persons from acts of torture, custodial death, and custodial rape
in Pakistan. The Bill provides special protection to marginalized sections of
the society like women and children. For instance, it states, "No female
shall be detained to extract information regarding the whereabouts of a person
accused of any offence". Only a female public servant can take a female
into custody is another notable provision.
Pakistan ratified the United Nations
Convention Against Torture (UNCAT) in 2010, but has failed to promulgate
anti-torture legislation, and to even define torture. Torture includes the
denial of basic human rights to those detained and interrogated for the purpose
of extracting confessions, which is routine in Pakistan. Human rights can
be rooted in a culture only when the ethical and moral foundations
of that society are compatible with human rights concepts and norms.
And, this is where foundational codes in Pakistan are lacking. The prevailing
provisions of Pakistan Penal Code have failed to provide justice and redress to
victims of custodial torture. The Constitution too does not define torture or
deem it a crime.
Along with its partners in Pakistan,
the Asian Human Rights Commission (AHRC) has been working to develop and
introduce an anti-torture legislation since 2009. A draft has been developed
through a series of discussions, seminars, workshops, public meetings, and
consultations with parliamentarians organized in different cities. Due care was
taken to make this proposed law all encompassing so it could cover all aspects
of custodial torture and minimize lacuna. Human rights activists, lawyers, and
retired judges were asked for their input on the draft legislation and many of
their suggestions were incorporated.
This draft legislation proposed by
civil society activists and legal experts is more detailed and comprehensive in
its approach and reach as opposed to the draft Bill tabled before the Senate
Standing Committee. The Bill tabled has gone to the length of changing the very
definition of torture in UNCAT to provide impunity to law enforcement agencies.
For instance, the definition of
torture in the Senate Committee Bill does not include the concept of
"omission". The civil society draft legislation, on the other hand,
notes, "If an officer of the law enforcement agency fails to curb the
offence of torture or abets it he too should be punished".
Also, 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 about 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.
The definition of Torture in Article
1of UNCAT is;
1. For the purposes of
this Convention, the term "torture" means any act by which severe
pain or suffering, whether physical or mental, is intentionally inflicted on a
person for such purposes as obtaining from him or a third person information or
a confession, punishing him for an act he or a third person has committed or is
suspected of having committed, or intimidating or coercing him or a third
person, or for any reason based on discrimination of any kind, when such pain
or suffering is inflicted by or at the instigation of or with the consent or
acquiescence of a public official or other person acting in an official
capacity. It does not include pain or suffering arising only from, inherent in
or incidental to lawful sanctions.
2. This article is
without prejudice to any international instrument or national legislation which
does or may contain provisions of wider application.
For the effective law against torture
it is better to adhere with the UNCAT definition.
Clause 12 of the Bill makes malafide
complaint against the public servant a punishable offence, with one-year
imprisonment and a fine of Pakistan Rupees 100,000; this clause is completely
unjustifiable from the standpoint of a common Pakistani. The risks associated
with complaining against a public servant in Pakistan are great enough. To
further impose on victims the risk of being prosecuted for a malafide complaint
will discourage victims from coming forward. The majority of victims of
custodial torture and rape belong to the underprivileged. How can they be
expected to cough up such an exorbitant amount if this Clause is used against
them in a malafide manner? How will they seek help from other witnesses who
would also fear prosecution in case they fail to prove the case? Furthermore,
as the realities of Pakistan demonstrate, this clause will be used most by the
military and police officials as another intimidation method to inhibit the
filing of torture complaints. Instead of facilitating lodging of complaints,
the legislators will only make them more onerous. The AHRC recommends that the
said Clause 12 of the Senate Committee Bill be deleted.
Clause 14 of the Bill vests the
Federal Investigation Agency (FIA) with exclusive jurisdiction to investigate
complaints of torture until the National Human Rights Commission (NHRC) becomes
functional. It is worthy to note that the NHRC Bill was passed by the National
Assembly in 2012, but was not given presidential assent, and has now lapsed.
The Senate Committee draft Anti-Torture Bill does not specify what is to happen
once the NHRC becomes functional. The Senate Committee Bill needs to stipulate
whether the NHRC will take over investigation of torture complaints exclusively
(as these will certainly fall in its mandate) or whether the FIA and NHRC will
both have the power to investigate torture complaints. Once the NHRC becomes
functional, the Senate Committee Bill must make the respective jurisdiction of
the NHRC and FIA clear. The Senate Committee Bill needs to clarify the
respective jurisdictions of the FIA and the NHRC with regard to the
investigation of offences, and ensure that the Rules include a comprehensive
detailing of the process and standard of investigation to be followed in all
cases. The Rules must also detail the standard of investigation to be followed,
irrespective of which body is conducting the investigation.
It should be noted that the UN
Committee Against Torture has stated in its General Comment 3, "an
investigation should include as a standard measure an independent physical and
psychological forensic examination as provided for in the Istanbul
Protocol".
Clause 14 of Senate Committee Bill
also clearly violates UNCAT which states, "Each State Party shall ensure
that its competent authorities proceed to a prompt and impartial investigation,
wherever there is reasonable ground to believe that an act of torture has been
committed in any territory under its jurisdiction."
The neutrality of the investigation
agency is jeopardized in Pakistan and may cause miscarriage of justice. Vesting
the responsibility of investigation with the FIA, as it operates presently,
will only give a cover to the perpetrator. The investigation body needs to be
entirely delinked from the law enforcing institutions whose official is being
implicated. Otherwise, it will only provide impunity to the perpetrators of
custodial torture. The AHRC strongly recommends that the legislators make
appropriate provisions for the establishment of an independent investigation
commission. This commission should operate untainted by any external influence,
and have as its members, representatives of civil society, retired judges, and
former LEA personnel. A provision allowing for judicial enquiry, in addition to
the independent commission should also be incorporated.
Next, Clause 15 of the Senate
Committee Bill specifies a separate procedure for complaints against members of
the armed forces and intelligence agencies. In such cases, the FIA is to inform
the federal government and act according to its directions. This provision is
alarming. It will shield the armed forces from any criminal proceeding in case
of a complaint of torture. UNCAT provides for accountability of all law
enforcement agencies on equal footing. To require the FIA to act on the advice
of the federal government compromises the investigation of these cases. A
similar provision was inserted in the NHRC Bill, 2012, indicating that external
oversight mechanisms are not being given direct power of investigation into
abuses committed by the armed forces and intelligence agencies. This clause
must be deleted in the interest of the victims of torture to ensure dispensation
of justice.
Clause 16 of the Bill provides for
the transfer or suspension of the public servant pending investigation. The
option of transfer should not be allowed. Is it appropriate for the public
servant who has committed an alleged act of torture be allowed to continue
operating in another locality? The AHRC recommends deleting the word transfer
from Clause 16.
The AHRC also suggests that whenever
the death of a person in custody occurs it must immediately be brought to the
notice of the independent investigation commission for investigation.
The accountability mechanism
envisaged in the Senate Committee Bill tabled is faulty. The Bill needs to
elaborate on the responsibilities of the investigation body and the procedure
that it must follow. The important aspects have been kept open-ended to allow
the law enforcement agencies an escape route following the allegation of
torture. The Bill provides no redress to the victim of torture per se. Has the
Bill been rendered toothless to allow powerful agencies to perpetuate the
vicious cycle of torture and injustice?
The AHRC urges legislators to review
the bill with these missing provisions in mind.
# # #
About AHRC:The Asian Human
Rights Commission is a regional non-governmental organisation that monitors
human rights in Asia, documents violations and advocates for justice and
institutional reform to ensure the protection and promotion of these rights.
The Hong Kong-based group was founded in 1984.
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