‘Iterum puer nobis’

Published August 14, 2022
The writer works as a policy and advocacy officer at Justice Project Pakistan.
The writer works as a policy and advocacy officer at Justice Project Pakistan.

THE story goes that when PPP Senator Sherry Rehman’s Torture and Custodial Death (Prevention and Punishment), 2021, bill was put up for voting in the Senate on a balmy July afternoon last year, there were murmurs of discontent from the treasury benches. They soon burgeoned into a full-blown tirade with an erstwhile government minister contending that with torture outlawed, policing would be rendered completely futile. Incensed by the proposal to criminalise torture, the minister contended that torture was the most reliable tool that police in Pakistan had to extract information, and snatching that away would rob law enforcement of the most precious tool in their kit.

That, dear readers, is how deep the rot runs. So entrenched is torture in our criminal justice system that it is seen as an irreplaceable investigatory tactic. It is a more or less professionally sanctioned practice, seen as a natural by-product of poorly resourced and overburdened policing. Countless cases see defendants offer up confessions under the harrowing strain of physical and mental torment, with various medico-legal certificates and testimonies offering substantive evidence of wanton torture carried out by the police. The absence of any law that criminalises torture has fostered a culture of impunity around a practice that has led to the public being resigned to this sad reality of our criminal justice system.

Commitments to pass legislation that defines and criminalises torture have come from the very top. Since 2010, every government has pledged to pass this law, but to no avail. The delays did not come without a price. As both Houses of parliament dithered on outlawing torture, police kept resorting to torture to extract false confessions and testimony, trampling on the inalienable rights of detainees and undermining the rule of law.

Torture is more or less a sanctioned practice.

Nonetheless, recent days have given much-needed impetus to the federation’s efforts to outlaw torture: the National Assembly passed an anti-torture bill originally presented by the former interior minister Sheikh Rashid back in September 2021. In the 12 years since ratifying the United Nations Convention Against Torture, Pakistan has made at least five attempts to pass a law criminalising torture. Politicians from various shades of the political spectrum have tabled prospective legislation, only for it to fall by the wayside — until now. Spurred by the keen efforts to comply with GSP-Plus recommendations and acutely aware of the havoc torture wreaks on persons in custody, the NA passed the bill. Sheikh Rashid’s bill came after an earlier and much more comprehensive anti-torture legislation tabled by Senator Sherry Rehman. Unanimously passed by the Senate in July 2021, her bill was far more compliant with UNCAT.

The two bills have some seemingly subtle yet far-reaching differences. Most notable of which was the prescribed investigative mechanism. Senator Rehman’s bill called for the FIA to investigate complaints of torture until such time as the much more impartial and appropriately suited National Commission for Human Rights has an investigative infrastructure fit for the purpose. Her bill also established stand-alone punishments for perpetrators of torture and criminalised psychological torture alongside physical. Au contraire, ex-minister Rashid’s bill grants sole investigative authority to the FIA, which would have questionable impartiality. Tasking police officials to investigate their own colleagues creates a palpable conflict of interest and an inquiry by the NCHR on reports of torture in Faisalabad district has already shown that this arrangement doesn’t work. The bill also uses the existing penal code to prescribe punishments, rather than establishing stand-alone punishments. The fact that the PDM-led government moved forward with a bill tabled by one of its harshest critics displays the clear bipartisan support to outlaw torture. As the bill ascends to the Senate, it would only be appropriate for clauses from both bills to be clubbed together. Not only would this exhibit a united political front, it would also make for an altogether efficacious and actionable legislation.

The UNCAT and the GSP-Plus Committee have keenly observed Pakistan’s rickety path to pass this law. In a 2021 communication to the government, the UN special rapporteur on torture lauded the effort to pass the bill. Concluding observations from UNCAT and GSP-Plus assessment reports have repeatedly called for an anti-torture bill to be passed. With an UNCAT review due later this year, an upcoming Universal Periodic Review and a GSP-Plus reconsideration slated for late next year, lawmakers can ill afford to delay the process any further. A bill criminalising torture must be passed by both Houses to halt this abominable practice and ensure that the rights of the most vulnerable in our criminal justice system are adequately safeguarded.

The writer works as a policy and advocacy officer at Justice Project Pakistan.

Published in Dawn, August 14th, 2022

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