Custodial torment has turned out to be so basic nowadays that the police and administration as well as even individuals underestimate it as a normal police routine. The very idea of a human being in custody save for protection and nurturing is anathema to human existence. Even when applied to indicate arrest or incarceration, it does not carry any sinister symptoms of violence during custody.
Hardly a week passes without an incident of custodial torture being reported in the press. Last week, a senior journalist was arrested by the Federal Investigation Agency along with a former federal minister, Sheikh Rashid, from the backdoor entrance of his residence. Physical torture of the detainees in police custody has been quite pervasive for several decades in Pakistan. It is a naked violation of human dignity and a degradation which destroys to a very large extent the human personality.
Perhaps, the police still suffer from the impact of their colonial origins as a repressive instrument of police rule. There is constant pressure on the police from all quarters, including politicians and bureaucrats, to show instant results. The crudity of criminal investigation is often blamed on the crudity of resources, lack of adequate facilities and the extremely high case-load, with an inefficient supervisory structure also hindering the ability of the police to produce the results required of them, prompting them to take short cuts. Torture or enhanced interrogation of suspected criminals in police custody is a human rights abuse, which plagues citizens of all countries across the world. However, this malaise is seen as no more apparent across the world as much as it is seen in Pakistan.
Where there is no legislation that deals with torture specifically, there is legislation that treats it as an ancillary matter. The Police Order 2002 has penalized custodial torture, with the offending officer getting up to five years in jail and a fine. The Order however fails to define torture and is left very vague and unenforceable. Even within criminal law, sections of the Pakistan Penal Code which deal with offences related to hurt have to be relied upon as torture is not recognized as a separate criminal offense. Given the widespread nature of this problem, one wonders why such apathy exists in the electorate.
It should be clear now, that to end custodial torture absolutely in Pakistan, a social change needs to be brought about. If the people do not believe in an absolute ban on custodial torture, then our laws in a democratic society should reflect those needs and solve the dilemma of civil liberties and human rights by advocating for openness and accountability of these enhanced interrogation techniques
It is a paradox that torture continues to exist in our bordering jurisdiction, India, as well. This is because because India is a liberal democracy with clearly articulated constitutional and statutory provisions against torture that are constantly being developed and monitored by a strong and independent judiciary.
The recent cases of custodial torture show a consistent and alarming pattern of tolerance of the use of torture by the incumbent government on its political rivals. It is viewed as the sheer impunity enjoyed by law enforcers. Such demonic episodes of torture result in terrible fear in the minds of the common citizens. They become convinced that their lives are consistently under threat and that the protectors themselves are busy bludgeoning human rights to death.
In Pakistan, where the rule of law is inherent in each and every action and right to life and liberty is prized as a fundamental right adorning highest place amongst all important fundamental rights, instances of torture and using thirddegree methods upon suspects during illegal detention and police remand casts a slur on the very system of administration. Where the Constitution does outlaw the use of torture, it does so in a very limiting fashion. Human rights take a back seat in this depressing scenario. Article 4 of our Constitution enforces the concept of rule of law that is rooted in the doctrine of specific powers. Public officials have no inherent power and can only exercise such power as vested in them by the law.
The police, while arbitrarily arresting and torturing citizens or barefacedly outsourcing them to some other law-enforcement agency, outrageously violate this very safeguard granted to the citizen by the Constitution itself. On a similar note, torture is an egregious violation of Article 9 of the Constitution, which grants an inalienable, indivisible right; the right to live free from state-sponsored torture and intrusion of the State. The right to dignity articulated in Article 14 has been enshrined in our constitutional philosophy as inviolable. Perhaps, torture is an affront to human dignity, and makes protection granted by Article 14 inoperable.
If history stands as a testament to anything, it’s the fact that abuse of power leads to the gravest of human rights violations. When power is left unchecked in the hands of those unfit to yield it, it creates an unfair power dynamic allowing those people to abuse that power. When custodial violence, torture or a fake encounter is equated with justice, it’s the Constitution that is the ultimate victim.
Pakistan is a signatory of many International legal regimes which outlaw custodial torture absolutely: the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) and the International Convention on Civil and Political Rights (ICCPR). But Pakistan is still lagging in fulfilling its international commitments. The prevailing experience, while being a shocking revelation of the state of policing, as that state is also proof that the public could be forced into silence, if the state so requires, by imparting fear.
At the domestic front, the legislature in Pakistan has never legislated laws to outrightly ban custodial torture or criminalize the act in such a manner so as to make it an effective deterrent for police authorities. In fact, given the current social-political climate of the country, with Pakistan being enveloped in a lengthy and bloody insurgency for the past 13 or so years, the legislature has actually passed laws such as the Pakistan Protection Ordinance, which gives police authorities even less oversight, more powers and greater discretion.
However, more recently, the Torture and Custodial Death Bill, 2022, was passed by Parliament, criminalising custodial torture. Under it, torture by public servants is a cognisable, non-compoundable and non-bailable offence. The courts are then required to exhibit more sensitivity and adopt a humanist rather than a mechanical approach, while dealing with such cases.
It should be clear now, that to end custodial torture absolutely in Pakistan, a social change needs to be brought about. If the people do not believe in an absolute ban on custodial torture, then our laws in a democratic society should reflect those needs and solve the dilemma of civil liberties and human rights by advocating for openness and accountability of these enhanced interrogation techniques.
