On June 26, the world commemorates the International Day in Support of Torture Victims. Pakistan, which ratified the United Nations Convention Against Torture (UNCAT) in 2010, stands at a critical juncture in its battle against custodial maltreatment as it continues to battle systemic flaws and a culture of impunity. Reports of brutalities by law enforcement agencies and private prisons continue to surface, highlighting the urgent need for comprehensive reforms and robust implementation of anti-torture laws. This day serves as a stark reminder of the plight of countless victims and underscores the imperative for Pakistan to uphold its commitment to human rights and justice.
After its proclamation by the UN General Assembly on December 12, 1997, the world observed the 26th International Day in Support of Victims of Torture on June 26. Civil society organisations expressed solidarity with hundreds of thousands of victims of custodial mistreatment across the globe, reminding member states of the United Nations that the prohibition of torture is a jus cogens norm of international law: a fundamental principle that applies at all times and in all circumstances (in other words an international crime). The inviolability of this norm premises on the explicit prohibition of torture, which is not only defined by the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) but also under international humanitarian and criminal laws. Article 1 of the UNCAT defines torture as 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.
By establishing the obligations of states that have ratified the UNCAT, Article 2(1) requires each signatory state to take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction. Article 2(2) states that no exceptional circumstances whatsoever - whether a state of war or a threat of war, internal political instability, or any other public emergency - may be invoked as a justification for torture. Article 2(3) further stipulates that an order from a superior officer or a public authority may not be invoked as a justification for torture.
Despite the clear illustrations of Articles 1 and 2 of this core human rights instrument, the act of custodial maltreatment by law enforcement agencies is systematically endemic in Pakistan and is accepted as an inevitable part of law enforcement both at institutional and societal levels. In the absence of modern investigation techniques and independent oversight, loopholes in the criminal justice system, the perpetrators (public officials with powers to arrest and investigate) subject the detainees to inhuman and degrading treatment with unchallenged impunity.
The 2023 annual report of the US Department of State on Human Rights Practices in Pakistan, HRCP’s "State of Human Rights in 2023” report, and complaints of custodial deaths in Nowshera and Charsadda districts of KP province in March this year, as well as a flood of complaints from PTI’s workers including leader of the opposition in the national assembly Omar Ayub Khan, accusing Punjab police of “enforced disappearances and custodial brutalities” after May 9 last year, are a few reported violations of international law.
“Torture is the deliberate and systematic dismantling of a person’s identity and humanity. Its purpose is to destroy a sense of community and create a climate of fear. Beatings and psychological torture are common forms reported. Clinicians have documented more sophisticated forms of torture over the years, especially methods of psychological torture that do not leave physical scars. This makes it more difficult for survivors to seek redress”, says a study of the Centre for Victims of Torture (CVT), a Minnesota-based organisation.
Owing to systemic flaws, people arrested and detained on different criminal charges face minor to medium to third degree of physical, mental and sexual torture, and the number varies from area to area. But the LEA’s methodology of “teaching a lesson as deterrence for crime control and breaking someone into confession,” which has been prevalent for decades in the Pakistani thana (police station) culture, every arrested person had to undergo psychological distress and pain: if lucky, they escaped such physical torment, courtesy power and pelf.
Interviews with several jailed victims show that the majority from marginalised classes remain either ignorant or deliberately deprived of their inherent right to redress and reparation enshrined in Article 14 of UNCAT, Mandela Rules and Pakistan Prison Rules 1978. Ironically, they are left to transfer the trauma in the shape of domestic violence, drug abuse and socio-economic dysfunctionality-induced poverty, to their families and society at large.
It is pertinent to note that Pakistan ratified the United Nations Convention Against Torture and Other Cruel, Inhuman and Degrading Treatment or Punishment (UNCAT) in June 2010, after constant pressure exerted by the European Union and the concluding observations from the UN’s Committee Against Torture that reviewed Pakistan’s compliance to this core human rights instrument in April 2017, but despite international commitment, the state of Pakistan continues dillydallying in outlawing torture.
Article 14(2) of Pakistan’s constitution prohibits “torture for extraction of evidence”. Sections 119 and 120 of KP Police Act 2017, section 156D of Police Order 2002, and certain legal provisions of the Code of Criminal Procedure as well as the Pakistan Penal Code, scantly define punishment for a public official accused of committing torture, but the absence of torture-specific legislation remains a matter of grave concern for advocates of torture-free arrest and detention.
Owing to systemic flaws, people arrested and detained on different criminal charges face minor to medium to third-degree of physical, mental and sexual torture
Vigorous pursuit by dauntless local and international human rights entities, the European Commission and the UN’s Committee Against Torture, eventually led to the criminalisation of torture in Pakistan in November 2022, after a delay of about 12 years following the ratification of UNCAT. The enactment of “Torture and Custodial Death (Prevention and Punishment) Act 2022” unequivocally helped Pakistan win domestic and global recognition and applause. With the act's enactment in 2022, Pakistan embarked on a new era where the protection of human rights is genuinely assured, both in substance and practice. This legislation marked a significant milestone in Pakistan’s commitment to upholding the fundamental rights of its citizens. The Act of 2022 represents a formative legislative measure aimed at eliminating the menace of torture, rapes and deaths occurring under the custody of public officials, affirming the commitment of the Pakistani state to uphold human rights and ensure the dignity of individuals under its dominion. In essence, the Act of 2022 is a robust legal instrument designed to significantly curb the risks of custodial torture, rapes and deaths. It also brought about significant economic benefits for Pakistan with an extension in the Generalised System of Preferences (GSP)-plus status from the European Union till 2027. This concession of duty-free imports of Pakistani products to European markets is definitely a blessing for a country mired in economic indiscipline and meltdown.
“By launching a clear legal mechanism for accountability, prevention, and victim support, the Act of 2022 represents a critical step forward in the protection of human rights and the promotion of justice and dignity for all individuals under the care of the State,” observed Justice Ali Zia Bajwa of Lahore High Court (LHC) in the first-ever landmark torture and custodial death related judgment in the writ petition 61743-H/2023 LHC (Mst. Sarriya Bibi vs. RPO Sheikhupura, etc.) pronounced on May 30, 2024. The LHC judgment delved into the roles and duties of the National Commission for Human Rights (NCHR) and the investigating agency (FIA) by interpreting the provisions of the Act of 2022. The court also directed the government to ensure publicity as a legal requirement of the act, the proactive role of NCHR and FIA in the implementation of the anti-torture law, and immediate transfer of all the under-investigation torture complaints registered after the promulgation of the 2022 Act to the FIA.
Despite all these positive steps towards eradication of the scourge of torture through the implementation of the act of 2022, the issue persists. If we look at the global campaign against custodial maltreatment that started with the UNCAT’s becoming jus cogens norm in 1987, the proclamation of June 26 as UN’s International Day in Support of Torture Victims in 1997, and Pakistan’s response and respect to this human rights instrument, shows that the prevention of the act of torture has never been a priority area for successive governments, policymakers, researchers, academia and funding organisations.
To the chagrin of many, the NCHR, the torture complaint handling authority, and the most influential civilian investigation agency, the FIA, have yet to educate the general public about the complaint-lodging mechanism. Mainstream political parties, which are supposed to exercise legislative powers defending the human rights of citizens, appear to be selective in their approach towards prevention. They exhibit complacency towards custodial brutalities when it comes to settling scores against their political rivals or individuals drawing their leadership’s ire.
The absence of torture-specific legislation remains a matter of grave concern for advocates of torture-free arrest and detention
If we look at the ongoing global movements denouncing custodial abuses, a UN-sponsored advocacy campaign is about to facilitate an agreement among states to end the trade of torture tools by regulating the trade in torture-capable weapons, tools and equipment widely used by law enforcement and other public authorities. But ironically, due to the absence of research work on the causes and effects of torture on the part of local academia, the primary level knowledge about torture and remedial measures is still missing with tacit acceptance by government institutions and the public as well: that is why it either goes unreported in a majority of cases, or is under-reported.
Despite torture-specific legislation, the attitude of sweeping torture complaints under the rug in Pakistan emanates from the deep-seated fear of reprisal among victims and witnesses, a non-conducive environment for human rights defenders, and the absence of an organised collaborative framework. The local mainstream media also exercises self-restraint and censorship when it comes to reporting and discussing custodial abuses.
Due to the poor implementation of legal and institutional mechanisms, the yet-to-be-researched scale and enormity of torture and its heavy toll on the human body, on mental health and socio-economic life, the lack of capacities and knowledge of relevant stakeholders (doctors, lawyers, judicial magistrates, investigating officials, law enforcement agents, prosecutors, etc.) in documenting torture within the guidelines of Istanbul Protocol, survivors and their families are left to bear the brunt.
Pakistan’s mainstream political parties, which are supposed to exercise legislative powers defending the human rights of citizens, appear to be selective in their approach towards prevention of custodial torture
Seeking guidance from the LHC’s landmark judgment of May 30, 2024, political parties and civil society organisations, researchers, academia and media must overcome the fear of reprisals and join hands with an enhanced level of research, registration and monitoring of torture cases as well as their eradication in line with the provisions of the Act of 2022. INGOs must design a long-term support strategy to combat torture through awareness and capacity building of LEAs as well as the general public at a massive level in Pakistan.
Upscaling and strengthening the crime investigation system with state-of-the-art techniques and opening forensic labs at the district level, ratification of the United Nations Optional Protocol on Convention Against Torture (OPCAT), allowing local and international monitoring of detention centres, restoration of district, regional and provincial public safety and police complaint commissions with extended role and control, as a civilian oversight of the police department, are steps worth considering.
Researchers and policymakers ought to explore ways and means to break the vicious cycle of poverty, mental complications, crime and torture, which are the major, interconnected contributing factors to custodial abuses in low- and middle-income countries, including Pakistan. A sufficient increase in the existing, abysmally small size of 0.4% of the total health budget allocation for mental healthcare is the need of the hour.
It is also incumbent on clinicians to apply international best practices for rehabilitation and engagement of torture survivors in prevention as well as rehabilitation mechanisms in line with the Global Standards for Rehabilitation of Victims of Torture (GSR) that were framed, approved and practised by International Rehabilitation Council for Torture Victims (IRCT), an umbrella organisation of over 126 member centres busy in offering rehabilitation services to torture victims in 76 countries.