June 27, 2023
ISLAMABAD – The International Day in Support of Victims of Torture on June 26 commemorates the date when the UN Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (UNCAT) came into force in 1987. Pakistan became a signatory to the UNCAT in 2008 and ratified it in 2010. The latter was important for several reasons, one of which was to fulfil the requirement to obtain the GSP+ status — granting Pakistani products duty-free access to the European market.
As a signatory to the treaty, Pakistan is obligated to meet a set of regulatory standards outlined in the Convention to eliminate the use of torture by public officials, including enacting legislation that effectively defines and criminalises torture.
But what is torture?
The colloquial use of the term does not always align with the legal definition established in the UNCAT. Per Article 1 of the Convention, torture is defined 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.”
Understanding the implications of this definition is essential for activists, victims, journalists, and citizens to know their rights.
Given the passage of Pakistan’s Torture and Custodial Death (Prevention and Punishment) Act, 2022, it is imperative that we answer the following question: to what extent does the Act meet the UNCAT standards? By comparing Pakistan’s legislation to similar laws passed by other South Asian convention signatories, this article hopes to shed light on how Pakistan can improve its anti-torture law to better adhere to UNCAT criteria.
The law in Pakistan
For a law to be effective, it is imperative that the definition of the term that it tackles is accurate. Under Pakistan’s new law, ‘torture’ is defined as:
“an act committed by which severe physical pain or physical suffering, 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.”
While this definition of torture is comprehensive, it misses one important element — mental torture. According to a report on torture by UN Special Rapporteuer Pieter Kooijmans, the distinction between physical and mental torture “seems to have more relevance for the means by which torture is practiced than for its character”. That is to say, even in instances of brutal physical torture, the long-term effects could be primarily psychological and vice versa.
Under Article 4.2 of the UNCAT, state parties are required to instate penalties commensurate with the crime being committed. The anti-torture law in Pakistan, however, fails to stipulate any standalone punishment and relies on the provisions of the Pakistan Penal Code (PPC). The main contention here is that torture is not an offence under the PPC, so there is confusion in terms of how punishment will be meted out under the Act. The PPC only penalises ‘hurt’, with punishment depending on the severity of hurt caused.
Furthermore, Article 14 of the UNCAT concerns compensation for victims of torture or their families. Here too, Pakistan’s law calls for the protection of victims, but fails to enact a fixed mechanism for financially compensating victims. There needs to be a mechanism that allows financial compensation, which can play an important part in the rehabilitative process of the victims.
For any law to be implemented in its true letter and spirit, the stakeholders involved must be sufficiently trained to carry out their relevant duties and responsibilities. Article 10 of the UNCAT talks about educating and informing law enforcement officials about the prohibition against torture. In Pakistan’s case, while Clause 18 of the anti-torture legislation talks about the government’s responsibility to dispense information regarding the Act at regular intervals through the media, it fails to obligate the government to sensitise law enforcement agencies, medical professionals and the judiciary.
Moreover, international best practices demand investigations be carried out under independent empowered bodies to ensure impartiality.
Under Pakistan’s Act, investigative jurisdiction has been granted to the Federal Investigation Agency (FIA), with oversight of the investigations given to the National Commission for Human Rights (NCHR). The inclusion of the NCHR is a critical step in establishing impartiality, and it is of the utmost priority that they be capacitated and given adequate resources to play a more proactive role in the matter.
Lessons from neighbours
So how does Pakistan’s Torture and Custodial Death (Prevention and Punishment) Act, 2022, hold up in comparison to other South Asian countries that have ratified the UNCAT and enacted similar legislation criminalising torture?
This article cross-examines Pakistan’s Act with similar laws passed by Bangladesh, Nepal, and Sri Lanka. For the purpose of this article, South Asian countries were selected because of their cultural, political, and socio-economic similarities and, hence, serve as the best benchmarks to gauge Pakistan’s own progress. Despite being South Asian nations, Bhutan and India have been excluded from this study, given that Bhutan is not signatory to the UNCAT, and India has yet to ratify it despite being a signatory.
The degree of adherence to UNCAT standards was measured across six factors:
- Definition of torture: Does the legislation identify torture as both mental and physical?
- Legal priority: Does the legislation prevail over other existing laws in the country’s penal code?
- Investigation governance: Is the body in charge of conducting torture investigations sufficiently impartial?
- Legal protection: Does the legislation provide legal protection for victims and/or complainants who file allegations of torture to the court?
- Gender protections: Does the legislation include protections for gender minorities?
- Punishment: What are the legal punishments for offence under the legislation? Are they severe enough to deter torture?
Although there are certainly more factors that could be considered, the six identified above capture areas of core controversy and disagreement.
Insights from the comparative study
Comparing Pakistan’s legislation to Bangladesh, Nepal, and Sri Lanka yields significant insights in each area of analysis. While Pakistan’s Act is indeed progressive, and a step towards the right direction, there are several areas that can be improved. These improvements are feasible, given that other South Asian signatories included them within their own legislation.
Definition of Torture
Pakistan is the only country that does not include “mental torture” in its definition of torture. A wealth of medical research indicates that mental torture can often cause lifelong trauma in victims, leading to suicide or decline in mental function. Mental torture must be recognised as a severe form of torture in its own right, which will continue to be used unless explicitly outlawed.
Given that every other South Asian country has included mental torture within their respective definitions, there is no excuse for Pakistan to ignore such a crucial element. One reason for this omission could be the culture of dismissal of mental health in Pakistan.
Each Act contains a provision that gives priority or an overriding effect to torture legislation. This key addition prevents lawmakers and public officials from manipulating contradictory laws within their respective penal codes to justify torture and evade punishments.
That being said, Bangladesh, Nepal, and Sri Lanka all contain an additional provision that explicitly dismisses threats of war or public emergency as justifications for torture. Given the near-constant instability in Pakistan, and the fact that most acts of torture are justified under the auspices of protecting the public from foreign or domestic threats and maintaining order, Pakistan should include a similar provision within its Act.
While Pakistan vests sole investigative authority in the FIA, this is a tenuous decision for a variety of reasons. Most notably, the FIA is comprised of public officials, often former police officers themselves. As such, the potential for conflict of interest is high as the law makes public officials investigate one another, without any guard against foul play. It is thus of the utmost importance that the NCHR be strengthened, and its current resource constraints and bureaucratic hurdles be addressed so that it may have the capacity to play a more direct investigative role as opposed to an overseer one.
Although Bangladesh and Nepal also mandate that public officials remain in charge of investigations of torture, their legislation criminalising torture contain a variety of addendums that help to ensure impartiality as required by the UNCAT.
Under Article 5 of Bangladesh’s Act, individuals are vested with the authority to appeal for judicial investigation if they believe that the superintendent of the police is ill-suited to investigate the case. Nepal provides the court with the jurisdiction to decide if the investigation requires a superior officer to investigate the case under Article 3.13.
These additions ensure that even when public officials investigate one another, there is an option for the complainant to appeal for a new investigator and that there is a rank differential between the offender and the investigator. While such additions will not eliminate impartiality entirely, they are more in line with the UNCAT’s requirements.
By and large, all countries have similar standards for legal protection. The Sri Lankan law contains additional provisions for the protection of non-citizens who are victims of torture. However, it can be reasonably argued that this is not essential, given existing provisions on the rights of non-citizens within the PPC (Article 4 also extends the Code to “any person in the service of Pakistan in any place without and beyond Pakistan”).
Across the board, each country is lacking specific protections for gender minorities within their legislation. This is unsurprising, given that the UNCAT does not mandate the existence of provisions for gender minorities.
However, Bangladesh and Nepal use male and female gender pronouns within the wording of provisions. Given the embedded patriarchal culture in South Asia, similar language should be used in Pakistan’s legislation criminalising torture. The exclusive use of male gender pronouns could be taken advantage of to say that women and transgender individuals cannot legally qualify as victims of torture.
The Pakistani law does not enumerate specific punishments for torture based on the severity of the crime. Instead, Articles 8-10 defer to the PPC in order to determine punishments for offenders.
Given that the PPC does not mention torture, this decision risks rendering the Act inefficient. The explicit threat of a high sentence and fine present in other legislations is more likely to create a deterring effect on the use of torture, as the consequences are clear to potential offenders rather than hidden within archaic legislative provisions.
Moreover, Pakistan and Nepal both punish mala fide, or bad faith, complaints. The punishments established in Article 11 may silence vulnerable victims who lack the resources or knowledge to pursue a lengthy and expensive legal battle.
In view of the above, there is significant room and grounds for improving Pakistan’s anti-torture law. There are potential legislative loopholes in the Act that could be exploited to continue the use of torture without accountability in Pakistan. If we are to move towards equity within our political and legal system, it is imperative that we learn from our neighbours who share our struggles.
Bangladesh, Nepal, and Sri Lanka are certainly not paragons of excellence with regards to legislation criminalising torture. However, analysing their legislation will certainly help Pakistan’s own process of self-improvement. Recognising the importance of The International Day in Support of Victims of Torture means recognising the steps we need to take in order to ensure accountability and end the culture of impunity for perpetrators of torture in Pakistan.
This article has been published in collaboration with Justice Project Pakistan, a non-profit legal action firm based in Lahore that represents the most vulnerable Pakistani prisoners facing the harshest punishments, at home and abroad.