INTERNATIONAL law prohibits the use of torture and so evidence obtained through torture must necessarily be excluded. As a state party to the Convention Against Torture and to the International Covenant on Civil and Political Rights (ICCPR), Pakistan is required to “take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction”. Pakistan signed CAT a decade ago, and ratified it in 2010.
Through all this time, from 2006 to 2012, in just one district of Faisalabad, we know that at least 1,452 individuals were subjected to torture. They were beaten with sticks, suspended from the roof, sexually assaulted, deprived of sleep amongst many other unspeakable things. Ongoing torture during this six-year period, that includes the years that Pakistan stepped up to adopt CAT leads to one conclusion — Pakistan was in flagrant violation of its international human rights commitments.
International law separately provides that legal assistance must be made available during pretrial procedures including police questioning. For instance, the Human Rights Committee has stated that “[i]n cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings”. It is unclear if the Pakistani citizens undergoing this cruel, inhumane and degrading treatment were represented by a lawyer during detention.
Coercive interrogations are admitted regularly during trial.
Second, the use of torture undermines the justice system’s fairness and legitimacy. Article 14(g) of the ICCPR guarantees the right of defendants “[n]ot to be compelled to testify against himself or to confess guilt”. The Human Rights Committee elaborates that “[d]omestic law must ensure that statements or confessions obtained in violation of Article 7 of the Covenant are excluded from the evidence”.
In a 2007 report on the death penalty in Pakistan, the International Federation of Human Rights concluded that “[t]orture in order to obtain confession, to intimidate and terrorise is widespread, common and systematic”. According to research by Justice Project Pakistan, it is commonly linked to other violations of human rights, such as illegal detention and forced confessions. This often results in wrongful convictions.
The Constitution provides that “[e]very person who is arrested and detained in custody shall be produced before a magistrate within a period of twenty-four hours of such arrest”. Yet, many victims of police torture are being detained for days without being entered into the system.
As a result of this practice, police have the ability to abuse prisoners prior to bringing them before a magistrate. Once a defendant has confessed under torture, few procedural protections exist. Under Pakistani law, interrogations are supposed to be excluded on a showing of torture, but in practice, coercive interrogations are admitted regularly during trial. Often, such ‘confessions’ are the only evidence prosecutors have against defendants. In practice, the lack of use of sophisticated methods of investigation leaves the investigation team with only one method to solve a crime ie confession. Too often, this leads the police to use torture to force confessions in order to proceed with a case. The admission of such testimonies is made easier by the low-quality of representation of defendants who fail to challenge it.
Worse still, there is no meaningful system in place to prosecute perpetrators or provide remedies to survivors. And as a result, such treatment continues to remain socially and politically acceptable
An important way to dismantle this acceptance is ending the impunity for perpetrators. The National Commission on Human Rights, a state body working independently of the government and directly accountable to parliament, has already prepared a report on torture which was sent to the federal government and finds mention in our previous yearly report. The misfortune is that torture, both physical and psychological, are not defined under the law formulated in Pakistan, despite ratifying CAT.
This is why the NCHR, earlier this month, initiated a formal inquiry into nearly 1,500 cases of torture uncovered in just one Punjab district, Faisalabad. NCHR commissioners travelled there to hear the testimonies of torture victims in person.
We heard their pain, we heard their stories of being humiliated and ostracised by their communities. And we are now obliged to take action against police officials who engage in such practices, no matter what their rank. This abhorrent use of torture as an interrogation method must be eliminated but it cannot be done unless we stop making it consequence-free.
This probe must be supported by all stakeholders, as its results will be an important step towards police reform. Robust investigations, coupled with effective avenues for post-conviction relief, are crucial if justice is to be served.
The writer is a retired judge and chairman of the National Commission on Human Rights.
Published in Dawn, May 31st, 2018