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Stop unlawful detention

February 02, 2012


THE death of another man in police custody in Lahore the other day has again drawn attention to the fact that unlawful detention, which is almost invariably accompanied by torture, is one of the most explosive issues in Pakistan today for human rights activists and advocates of the rule of law.

The matter assumes alarming proportions and can cause political crises if people are detained for vaguely defined and arbitrarily interpreted security considerations and their corpses are dumped at odd places as casually as irresponsible citizens throw garbage at their neighbours’ doors.

Nothing demonstrates a more thorough collapse of the legal order than these cases of illegal detention, torture and death in or as a result of wrongful confinement. And the situation will not get better unless sincere and determined efforts are made to check all forms of abuse of official authority and the relevant processes are properly streamlined.

The rot starts with disregard for lawful procedures at the time of arrest. There was a time when almost all arrests were made under warrants issued by competent authorities and arrest without a warrant was an exception to the rule. Now arrest without warrant has become quite common. Indeed, in instances of preventive detention or detention on suspicion of terrorist acts or terrorist intentions the victims are rarely, if ever, shown warrants.

Political activists are fully aware of the scandalous practice under which police used to detain them on the strength of blank detention forms (signed in advance by district magistrates). Many problems are likely to be solved if cases of arrest without warrant are reduced to the extent possible, because it may not be feasible to eliminate them altogether.

Another departure from civilised norms that has become increasingly evident is that people are taken into custody by men in plain clothes. It is generally assumed that it is necessary for the Crime Investigation Department personnel and other intelligence functionaries to avoid being identified while performing their duties.

This is not only absurd but also a violation of the victim’s right to be treated in accordance with the law. There is no reason why all those enjoying the power to effect arrests cannot do their job in their official uniforms or why they cannot disclose their names and ranks. This will obviate the possibility of arrests being made by agencies/individuals who do not have due authority.

Then every year scores of cases come to light in which arrest/detention is not recorded. If the detainee is held at a police station or a duly notified detention centre a common excuse for non-registration of arrest is that the person has only been summoned to help in an inquiry or that he is being held with a view to persuading a wanted offender to surrender.

The condition that anyone invited to help investigation must be given written notice for attendance is not honoured. In such cases redress is not very difficult as the détenu can be recovered by a court bailiff or during a magistrate’s visit to the lock-up (that needs to be made frequent).

The situation often becomes much more serious when somebody is detained at a secret detention centre/ safe house/ torture cell. At such places there is no limit to torture or the price that may be demanded for freedom. The families of the détenus fear the worst. One has met many old men and women who plead that their relatives may be charged with something so that the fact of their detention (and a possible bar to their liquidation) could be established.

It should not be difficult to realise that arrest without warrants or by unauthorised persons, detention without record and internment at an unauthorised and/or secret place deprives a citizen of his fundamental right to due process, causes anxiety to his family and undermines people’s allegiance to the state.

Respect for a lawful regime demands that all competent institutions/ services/ agencies should notify the people of their detention centres and they should be obliged to detain people only at such places. These centres must be visited without prior notice by the higher officials and also by district and high court judges. The sessions judges in particular must be advised to regularly visit such centres. In addition, organisations of lawyers and human rights activists should be allowed access to all places of detention.

Pakistani officials take pride in making a mockery of the legal requirement that each death in custody is judicially probed. Either no inquiry is held or the formality is disposed of perfunctorily. In any case the findings are seldom made public. Not only the administration but the judiciary and parliament also need to use their powers to ensure that each death in custody or each recovery of the dead body of a person believed to have been detained by state functionaries is properly probed and the victim’s family granted due protection. Their entitlement to compensation must also be strictly honoured.

The primary reason for advocating a radical revamping of the arrest and detention regime is the urgency of establishing an order based on due respect for the basic human rights of all Pakistani citizens, and all other persons who may happen to be present in Pakistan at any time. However, the need to repair the country’s image in the eyes of the larger human family also has become quite pressing.

Not only the higher echelons of the government but also officials at the various administrative tiers at both the federal and provincial levels should realise that Pakistan can no longer enjoy the privileges of a state beyond the international community’s radars. They should learn to pay due respect to the citizens’ fundamental rights as recognised in the constitution and in international human rights instruments, at least the ones Pakistan has ratified.

The contradictions between Pakistan’s laws and practices and international humanitarian law/ international human rights law will have to be removed in order to satisfy public opinion both at home and abroad. The sooner the law-enforcement personnel start respecting the citizens’ right to protection against unlawful arrest, detention, torture, involuntary disappearance and death in custody (acknowledged or denied) the better it will be for all parties, the state and the law-enforcement agencies included.