Torture aims to obliterate the victim’s personality and denies human being’s their inherent dignity. Torture has been denounced by the United Nations from its inception as one of the most heinous atrocities performed by humans. Under international law, torture is an expressly prohibited crime by all applicable instruments and cannot be justified under any circumstances. This prohibition is part of customary international law as well, which means it applies to all members of the international community, regardless of whether a State has ratified international treaties prohibiting torture. Torture as a systematic or widespread practice is also deemed to be a crime against humanity.
The Convention against Torture within Article 1, 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….”[1] It may be “inflicted by or at the instigation of or acquiescence of a public official or other person acting in an official capacity. “ The prohibition applies to many measures—e.g. beating on the soles of the feet; electric shock applied to genitals and nipples; rape; near drowning through submersion in water; near suffocation by plastic bags tied around the head; burning; whipping; needles inserted under fingernails; mutilation; hanging by feet or hands for prolonged periods.
Mistreatment that does not satisfy the criteria of torture is also prohibited under international law, either because less severe bodily or mental pain is inflicted or because the requisite standard of the ill-treatment is not present . For example, being forced to stand spread eagled against a wall; being subjected to bright lights or blindfolding; being denied sleep, food, or water; being subjected to forced persistent standing or crouching; or severe shaking are all examples of unlawful mistreatment. In other words, any physical abuse designed to intimidate, force, or “break” a person during an interrogation is banned and constitutes ill-treatment. It affirms that no one has the right to be treated in a cruel, inhumane, or degrading manner. The prohibition is not limited to acts causing physical pain or injury. It includes acts that cause mental suffering—e.g. through threats against family or loved ones. As the U.S. Supreme Court has recognized, “coercion can be mental as well as physical…the blood of the accused is not the only hallmark of an unconstitutional inquisition” Miranda v. Arizona, 384 U.S. 436, 448, (1966) citing Blackburn v. State of Alabama, 361 U.S. 199 (1960).[2]
Pakistan signed the UN Convention against Torture and Other Cruel, Inhumane or Degrading Treatment or Punishment (UNCAT) on 17th April 2008. The country adopted the same treaty on June 23, 2010, reaffirming its commitment to eradicate torture and harsh penalties in accordance with international human rights norms. However, it has been more than a decade, and Pakistan still has not domesticated the law either by new legislation or a legal amendment. Although Article 14 (2) of the Constitution[3] specifically outlaws the use of torture for the purpose of extracting evidence, and Article 9[4] states that no person shall be deprived of life or liberty save in accordance with law, there is no specific law in Pakistan dealing with torture. Since 2008, there have only been two attempts in Parliament to pass legislation defining and criminalizing incarcerated torture, both of which failed owing to delays and internal opposition. Senator Farhatullah Babar introduced a measure named “Torture, Custodial Death, and Custodial Rape (Prevention and Punishment) Bill, 2015.”[5]The Bill failed to gain traction in the National Assembly because it was not approved within the 90-day time limit set by the Constitution. Then in 2020, Senator Sherry Rehman introduced the “Torture and Custodial Death Bill, 2020”[6] as another attempt to define and criminalize torture. Unfortunately, due to internal opposition and a lack of support from within the Parliament, this bill perished as well.
Torture is a common tactic employed in police custody for extracting evidence and confessions. There is no law in place that complies with the UNCAT to bring police officers who abuse detainees and prisoners to justice. The number of reports of detention abuse, fatalities, and injuries in Pakistan is increasing at an alarming rate. One day to day example is the practice of the lower court judges allowing remand custody of the detainees with ease even though it is clear that anyone detained will be subjected to torture. The courts even fail to make use of the little protections available in the Criminal Procedure Code of Pakistan, where a judge could demand a reason from the investigating agency for demanding the custody of an accused than transferring the accused into judicial custody (S.167 CrPC).
It should be duly noted that victims of such torture are not just men, women and transgender persons but people with mental and physical disabilities as well. In 2019, Salahudin Ayubi, a mentally challenged man who was arrested for robbing an ATM was tortured which led to his custodial death by Rahim Yar Khan police as per forensic reports. Within few hours of his death, videos of his torture and harassment by the police went viral on internet and till date, the officers who allegedly murdered him, are free from any accountability.[7]
Unless a specific domestic law is passed to categorically define torture as per Article 1 of the UNCAT and then criminalize it as per Article 4 of the Convention, the issue of custodial torture will continue to take lives and widen the loopholes in the criminal justice system. Officials who engage in torture, including those who give the orders as well as those who carry them out, can and should be prosecuted criminally as well as disciplined. As long as there is no stringent law stopping them, they will continue to torture fellow beings without any hesitation knowing they can get away with it.
References
[1] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted on 10 December 1984)
[2] ‘The Legal Prohibition Against Torture’ (Human rights watch website , 1 june 2004) <https://www.hrw.org/news/2003/03/11/legal-prohibition-against-torture#What> accessed 20 June 2022
[3] Constitution of Pakistan, part II, chapter 1, Article 14(2)
[4] Constitution of Pakistan, part II, chapter 1, Article 9
[5] ‘Criminalising Torture in Pakistan: The Need for an Effective Legal Framework’ (OMTC’s website, .) <https://www.omct.org/site-resources/images/Pakistan-report.pdf> accessed 19 June 2022
[6] ‘Criminalising Torture in Pakistan: The Need for an Effective Legal Framework’ (OMTC’s website, .) <https://www.omct.org/site-resources/images/Pakistan-report.pdf> accessed 19 June 2022
[7] S Ijaz, ‘Another Unexplained Death in Pakistan Police Custody’ (Human rights watch website , 2 september 2019) <https://www.hrw.org/news/2019/09/02/another-unexplained-death-pakistan-police-custody> accessed 20 June 2022
