Pakistan and Law of Anti Torture
The UN General Assembly, on 9 December 1975, adopted ‘the Declaration on the protection of All Persons from being subjected to Torture and other cruel, inhuman or Degrading treatment or Punishment. Pursuant to that Declaration, the Convention was adopted by the general assembly of the United Nations on 10 December 1984, and it came into force on 26 June 1987. Therefore, 26 June is now commemorated as the international day in support of victims of torture. The Objective of the Convention is to define torture, bind states to take effective measures against torture and establish a system of regular visits undertaken by independent international and national bodies to place where people are deprived of their liberty, so that torture and other cruel, inhuman or degrading treatment or punishment may be prevented. The Conversation follows the basic structure of the Universal Declaration of Human Rights, International Covenant on Civil and Economic, Social and Cultural Rights with a Preamble and 33 articles.
The term ‘Torture’ has been defined in the article 1 of the Convention in a way that 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 doesn’t include pain or suffering arising only from, inherent in or incidental to lawful sanctions. However, this definition doesn’t affect or prejudice any international instrument or national legislation, which does or may contain provision of wider application.
Pakistan became a signatory to the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in April 2008 and ratified it in June 2010 with certain reservations which were later withdrawn in 2011. Being a party to the convention, Pakistan is under an international obligation to introduce a legislative framework to implement various provisions of CAT.
In compliance of its international obligations Pakistan takes it first step to make torture a crime, the Senate of Pakistan on July fourteen last year introduced the Torture and Custodial Death (Prevention and Punishment) Bill 2021. The Bill defines torture and prescribes penalties of up to 10 years imprisonment and a fine of 2 million Rupees for any public servant convicted of torture. The said bill holds great significance as it provides a clear and inclusive definition of torture under section 2(h) which encapsulates physical as well as mental torture in accordance with definition of torture under Article 1 of UNCAT Ibid. As per section 3 in compliance with Article 4 of UNCAT, the Bill expressly criminalizes and provides strict penalties for all acts of torture as well as custodial death and sexual violence by law-enforcement agencies for the first time in the country.
The Pakistan ordinary domestic laws had also have certain provisions to disbud torture during custody. Article 14(2) of the constitution clearly laid down and prohibits the use of torture only for the purpose of extracting evidence. Similarly, the provisions in Chapter XVI of the Penal Code (particularly Sections 339, 340 and 349) criminalize some acts ancillary to torture in a general way while ignoring core elements of torture such as mental suffering as prescribed in the definition of torture under Article 1 of UNCAT.
Likewise, Article 156 (d) of the Police Order, 2002 prescribes penalty for inflicting torture to any person in custody but this too fails to provide any definition of torture at all. As of now there are no independent investigation procedures in Pakistan to investigate cases of torture. In addition, there is an alarming level of insensitivity among the legal professionals including the judiciary regarding torture in Pakistan. The domestic jurisprudence concerning the use of torture is underdeveloped in Pakistan. The appreciation to exercise the right, as envisaged under Article 14 (2) of the Constitution, has thus far been minimal. To make matters further worse, in a claim against torture, the victims have the burden of proof, and there are no independent investigating agencies that are empowered to inquire on a complaint against torture.
By: Waqas Ahmed, Law Student at Abdul Wali Khan Universty Mardan
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