Theoretically, legislation and the lawmaking process should be responsive to the needs of the society it seeks to address. However, legislation in Pakistan often aims to address external issues. Recently, Pakistan amended its criminal laws related to terrorism and money laundering to exit the grey list of the Financial Action Task Force (FATF). Similarly, on 22 November, 2022, Pakistan enacted the Torture and Custodial Death (Prevention and Punishment) Act, 2022 (TCDA) as part of its obligations under the European Union (EU) Generalised Scheme of Preferences Plus (GSP+) list.

This, however, does not mean that indigenous needs are not addressed by the legislature. There are instances when legislation has been passed to address local issues, such as the Zainab Alert, Response and Recovery Act, 2020. This Act was introduced to strengthen the system of information exchange, protection and prevention of offences against children. This essay will examine the latest torture law with special reference to its genesis, characteristics and the way it affects the criminal justice system.

Genesis of the Law

The genesis of the new law, as noted above, is in the EU’s GSP+ programme that Pakistan benefits from. The EU GSP+ programme allows Pakistan preferential market access to the EU single market through reduced tariffs, quotas, and other trade-related duties. Pakistan’s trade sector has benefitted substantially under this programme since 2014.

These trade benefits are provided in exchange for the ratification and implementation of 27 international treaties on human rights, good governance, labour standards and environmental protection. Pakistan had ratified the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 1984 (CAT) in 2010, and was therefore obliged to criminalise all forms of torture, inhuman or degrading treatment or punishment through its domestic legislation. Likewise, Pakistan has also ratified many other international human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR), the UN Convention on the Elimination of All Forms of Racial Discrimination (CERD), the UN Convention on the Rights of the Child (CRC) and the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW). These treaties have their roots in the Universal Declaration of Human Rights, 1948, which is considered the foundational document for the modern international human rights system. Additionally, Article 14(2) of the Constitution of Pakistan, 1973 requires that no one shall be subjected to torture for extracting evidence. this is stated as not a salutary principle, but as a justiciable fundamental right under Article 199 of the Constitution.

Salient Features

The new law on torture has many significant salient features as it provides a substantial and procedural legislative framework for the prevention and punishment of torture.

• Wider Net Of Applicability

Previously, Pakistani law did not specifically define the terms ‘cruel’, ‘inhuman’, ‘degrading treatment’, ‘custodial death’ or ‘torture’. The TCDA, for the first time, has defined these terms. Interestingly, the terms have been defined in an expansive manner to ensure wider net of applicability. For example, the explanations to custodial death under section 2(1)(h) of the TCDA^[1] include ‘private’ medical premises. It also includes the ‘vehicle’ to cover cases of custodial death that occur during transportation.

• New Offences

The law criminalises many actions that were not stricto sensu offences within the meaning of ‘offence’ under section 40 of the Pakistan Penal Code, 1860 (PPC). In this way, the new category of offences has actualised the fundamental right not to be subjected to torture under Article 14(2) of the Constitution. The new offences include:

1. 1. Using illegally obtained evidence (section 3, TCDA). Prior to this, there was a debate whether the metaphorical evidence extracted out of torture could be admissible in a criminal trial. However, with section 3 of the TCDA in place, it is clear that illegally obtained evidence cannot be used in a criminal trial.
   2. Torture, custodial death and custodial rape have been penalised under sections 8, 9 and 10 of the TCDA respectively by linking these sections to the PPC.

• Gender-Responsive Legislation

The law in its present form is gender responsive. The TCDA addresses the procedural caveats contained in the Code of Criminal Procedure, 1898 (CrPC) and the Anti-Rape (Investigation and Trial) Act, 2021, such as:

1. 1. No female can be held in custody by a male police officer. A female police officer must be present as per section 4(2) of the TCDA;
   2. No information can be extracted from a female under section 4(1) of the TCDA; and
   3. A separate and new offence of custodial rape has been introduced in the law under section 10 of the TCDA.

The legal provision obliges the police organisations in the country to make sure that during an investigation or interrogation, there must be a female police officer present. This is likely to encourage further gender parity in the police organisations in Pakistan, which are already encouraging the recruitment of female officers at all levels due to a gender quota reserved at the time of recruitment.

• Special Investigation Mechanism

Section 5(1) of the TCDA states that only the Federal Investigation Agency (FIA) shall have ‘exclusive’ jurisdiction to investigate cases under the new torture law. There is, however, no legal provision in the legislation that obliges the police organisations to refer cases to the FIA as required by the law. Precisely, for this reason, there are writs pending adjudication before the Lahore High Court. In addition, the Magistrates have been enabled to notify cases to be sent to the FIA under section 5(2) of the TCDA.

• Referral System

There is no specific provision obliging the provincial police organisations and other law enforcement or investigation agencies to refer cases to the FIA under the TCDA. Thus, there is a need to amend the law to provide for a referral mechanism. This mechanism is also important as the FIA does not register criminal cases in the first instance; owing to its procedural requirements, the FIA has to first carry out an inquiry into a case to ascertain whether the charging under the new torture law is made out or not. The area is too unimportant to be left to the investigation agencies as there is little or no incentive for them to take up these cases. The area needs to be streamlined through proper legislation or, at the very least, by covering it in the implementing rules to be made under the law.

• Senior Trial And Appellate Courts

Irrespective of the quantum of punishment of the offence of which an accused is charged, section 6 of the TCDA authorises the Court of Sessions to try cases and any appeals against conviction or acquittal will be heard by the High Court as per section 12 of the TCDA.

• Accountability

Section 7 of the TCDA provides for the suspension, transfer and initiation of departmental action against delinquent public officials (who may or may not be from a police organisation)^[2]. This is an important provision and is likely to be used in future high-profile human rights violation cases.

• Time-Bound Investigation, Trial And Appeal

Time is of the essence in criminal prosecutions in Pakistan. Unfortunately, no legal consequences flow from delays in meeting deadlines or timelines. To combat this, section 13 of the TCDA provides that investigations must be completed within 30 days, trials within 3 weeks, and appeals decided within 30 days.

• Special Protection

On the pattern of witness protection laws, section 14 of the TCDA provides for protection of victims and witnesses under the law. Although the law does not provide more information on this, it is likely that special rules will be passed to implement this provision.

Impact On The Criminal Justice System

The law is likely to impact several aspects of policing and criminal justice in Pakistan. The areas that are most likely to be affected are:

• Crime Control

The dominant view in police organisations is that controlling crime is a function of the use of force and that criminal justice system guarantees, especially those relating to due process and fair trial under Article 10-A of the Constitution, seriously undermine the deterrence factor of law enforcement. This dominant view strongly argues that crime can only be controlled by taking extra-legal measures, including extra-judicial killings, to instil the fear of the law in the hearts of criminals. There is no empirical evidence to support this viewpoint; however, the implementation of the new law is seen as a major disruption to crime fighting in Pakistan by law enforcement agencies.

• Primacy Of The Federal Government

Pakistan is a federation where the criminal law, the criminal procedure and law of evidence are concurrent subjects (as per Articles 142 and 143 of the Constitution) and can be legislated upon by both the federal and provincial governments. As most of the law enforcement work is done by provincial police organisations, the new law, which is federal in nature, requires that the investigation of provincial police organisations’ excesses shall be ‘exclusively’ done by the FIA. This arrangement provides primacy to the federal government over the provincial governments.

• Role Of Prosecution

Prosecution departments have been established in all four provinces and at the federal level. The TCDA does not provide or elaborate upon the role of prosecutors. There is a strong case to introduce a regulated referral system, in which prosecutors can play an important role within the scheme of the TCDA.

• Compounding Of Offences

The law does not touch upon the substantive law and the criminal justice processes that affect the rights of police officers who, while dealing with entrenched and organised crime syndicates, have to face legal battles. To strike a balance, the TCDA must provide for the compounding of investigations and prosecutions to protect the interests of police officers.

• Police Laws

There was no provision prohibiting torture in the colonial Police Act, 1861. In 2002, the Police Order was promulgated for the whole country and criminalised police excesses including torture, and unlawful and vexatious arrests under Article 156. It may be noted that at that time (i.e., in 2002), Pakistan had not ratified the CAT, but owing to internal necessities, the law was made to limit police excesses of power. After the Eighteenth Constitutional Amendment, each provincial government enacted its own police law, while Punjab retained the Police Order, 2002. Similar to the Police Order, 2002, section 119 of the KP Police Act, 2017 and section 156 of the  Sindh (Repeal Of The Police Act, 1861 And Revival Of Police Order, 2002) (Amendment) Act, 2019 also criminalise torture and other police excesses. In addition, section 36 of the Sindh Police Act, 2019 provides an oversight mechanism outside the police hierarchy to impose a check on cases of police excesses including torture.

• Comparative Perspectives

In India, in the absence of robust statutory law on the subject, efforts were made to introduce ‘custody jurisprudence’, such as in Sri D.K. Basu v the State of West Bengal (AIR 1997 SC 610). A Draft Prevention of Torture Bill was written in 2008 and is pending consideration by the legislature. It may be noted that India has yet to ratify the CAT.

In the UK, there is a long history of the subject. It is arguable whether the Privy Council ever issued a torture warrant in the John Felton case in 1628, but since then, no torture warrant has been issued. There is a long history of common law declaring torture as illegal. In 1988, torture was criminalised under section 134 of the Criminal Justice Act, 1988. Similarly, the Eighth Amendment to the US Constitution criminalised torture in 1791 under ‘cruel and unusual punishments’. In the recent past, some scholars, such as Professor Allan Dershowitz at Harvard Law School, argued in favour of legalising torture warrants on the pattern of arrest and search warrants in order to prevent acts of terrorism.

Torture is also prohibited under several instruments of international humanitarian law. These include Article 4 of the Hague Regulations of 1907 and various provisions of all four Geneva Conventions of 1949, including Articles 40, 41, 130 and 147 respectively. Torture is prohibited in both international and non-international armed conflicts, with rules on the former governed under the Geneva Conventions and Article 75(2)(a)(ii) of Additional Protocol I, and rules on the latter governed under common Article 3 of the Geneva Conventions and Article 4(2)(a) of Additional Protocol II.

Concluding Remarks

The rights to life, to be treated in accordance with law and to be treated with dignity (Articles 9, 4 and 14 of the Constitution respectively) are some of the fundamental rights that form the core of the constitutional criminal law in Pakistan, requiring that the criminal justice system must be reformed and should not be broken. The new torture law is an opportunity to change the direction of law enforcement towards the rule of law instead of the rule by law.

References

[1] Section 2(1)(h) of the Torture and Custodial Death (Prevention and Punishment) Act, 2022.

[2] Section 7 of the Torture and Custodial Death (Prevention and Punishment) Act, 2022.

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