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.
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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.