ISLAMABAD: The Senate on Monday unanimously passed a landmark bill criminalising torture and custodial deaths.
The torture and custodial death prevention and punishment bill, moved by the PPP parliamentary leader in the upper house, was also welcomed by the treasury benches, indicating that it would sail through the National Assembly to become an act of the parliament after assent by the president.
“It is a much-needed bill. It is necessary and urgent,” Human Rights Minister Dr Shireen Mazari said when a leave was sought to introduce the bill.
The bill prescribes a punishment with imprisonment for a term not less than three years, which may extend to 10 years, and with fine, which may extend to Rs2 million, to those who commit, abet or conspire to commit torture.
The fine, if recovered, shall be paid to the legal heirs of the victim or to the victim as the case may be. In case the fine is not recovered, additional imprisonment shall be awarded which may extend to five years.
Likewise, whoever commits, abets or conspires to commit the offence of custodial death or custodial sexual violence shall be punished with imprisonment for life and with fine, which may extend to Rs3 million, the bill said.
Under the bill no person shall be detained in order to extract information regarding the whereabouts of a person accused of an offence or to obtain evidence from such person.
It also prohibits a male taking or holding in custody a female.
The bill makes it clear that any statement which appears to have been obtained as a result of torture, shall be inadmissible, and shall not be invoked as evidence in any proceeding, except against a person accused of torture as evidence that the statement was made.
Every offence punishable under the act shall be non-compoundable and non-bailable within the meaning of the Code of Criminal Procedure, 1898.
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.
Ms Rehman, who also chairs the Senate Standing Committee on Foreign Affairs, said as 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 added.
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”.
She said torture in custody was widely used to obtain confessions from people, whether in the criminal justice system or vulnerable members of society in general, especially those with no connections in the corridors of power, adding that if Pakistan was serious about dismantling the use of torture from its policing methods, it must begin by dismantling the impunity with which the practice was routinely carried out in its most deadly forms across the country, especially in the lockups of Punjab, where countless deaths via torture have been reported last year.
Senator Rehman said no province, however, was exempt from this practice, adding that this bill not only addressed torture in its rawest form, but also defined and laid out mechanisms of accountability regarding custodial rape and death.
The PPP parliamentary leader said: “The bill establishes a comprehensive complaints and investigation procedure. This framework effectively removes the possibility of police making arrests without warrant and initiating the investigation into complaints of torture on their own.”
She said the sessions court would now play the main role in taking cognizance of cases and ensure that investigations were initiated into complaints of torture.
Referring to the recent videos released from prison by Usman Mirza, a principal accused in a case of torture against a couple and sexually assault of the girl, she said: “On one hand there are people who are being tortured by the police and here we have this man who has committed heinous crimes but is recording videos from the prison. Why does he have all these facilities?” She said this comprehensive law was for the protection of the vulnerable and had a mechanism for accountability, data collection, punishment and redressal.
Earlier, the government suffered defeat in the house as it failed to block a bill seeking an explanation from the president on the compelling grounds for promulgation of an ordinance.
The bill sought to be moved by former Senate chairman Mian Raza Rabbani was opposed by Minister of State for Parliamentary Affairs Ali Mohammad Khan.
As many as 37 members voted in favour of the leave to introduce the bill while 33 opposed it.
Speaking on the bill seeking to amend Article 89 of the Constitution, Senator Rabbani said the president had the powers to promulgate an ordinance under exceptional circumstances.
Under the proposed amendment, he seeks to add a proviso to Article 89 of the Constitution, binding the president to record the compelling and extraordinary circumstances to become part of the ordinance’s preamble.
Senator Walid Iqbal of the PTI wondered as to why the president’s powers had not been curtailed when the 18th Amendment was passed. He also pointed out that the matter was sub judice before the Islamabad High Court and thus the proposed bill was ill-timed.
Opposing the bill, Ali Mohammad Khan said there must be trust in holders of constitutional offices, adding that it would be inappropriate to seek explanations from the president.
Mr Rabbani, however, chided the minister for fortifying President Arif Alvi.
He said under Article 50 of the Constitution the president was part of the parliament, and “not above the parliament”.
Highlighting some controversial actions of President Alvi, he said he was the one who sent a reference against Justice Qazi Faez Isa, which had been turned down by the Supreme Court.
He also referred to the reference invoking advisory jurisdiction of the apex court on secret ballot for Senate polls.
He also said various appointments of CEOs made by the president had been set aside by the high courts.
“You should be thankful that an impeachment resolution has not been brought against the president,” he said.
The state minister lamented that Mr Rabbani had launched personal attacks instead of giving legal arguments.
Mr Khan countered by referring to the diplomatic cables obtained by WikiLeaks, which revealed that in private, the then PPP-led government was not unhappy with the drone strikes inside Pakistan and had secretly allowed small groups of US Special Operations units to operate on its soil.
Another bill moved by Raza Rabbani seeking to amend the CPEC Authority Act was also opposed by the government as an attempt to pack up CPEC.
The house, however, gave leave to introduce the bill by a voice vote, which was then referred to the standing committee concerned.
Published in Dawn, July 13th, 2021