EDITORIAL: The Torture and Custodial Death Prevention and Punishment Bill 2021 has finally reached a landmark in its journey through parliament since 2019. On July 12, 2021, the Senate passed the Bill unanimously, a rare occasion for the current virtually dysfunctional parliament. Amidst equally rare bonhomie across the aisles, the Pakistan People’s Party (PPP) parliamentary leader in the upper house, Sherry Rehman, moved the Bill and was met with an approving remark by Human Rights Minister Shireen Mazari: “It is a much-needed Bill. It is necessary and urgent.” This rare cross-aisle unanimity lends credence to the possibility that the Bill will also sail through the National Assembly and pass into law after the President’s assent. The Bill prescribes punishment to those who commit, abet or conspire to commit torture with imprisonment of not less than three years, which may extend to 10 years, and a fine that could extend to Rs two million. If recovered, the fine would be paid to the victim or his/her legal heirs. If not recovered, additional imprisonment of up to five years is prescribed. Similarly, custodial death or sexual violence will be punished with life imprisonment with fine extending to Rs three million. No person shall be detained to extract information regarding the whereabouts of an accused or to obtain evidence from the detainee. Males are prohibited from taking or holding a female in custody. Any statement or confession obtained through torture will be inadmissible and shall not be invoked as evidence in any proceeding except against a person accused of torture. Every offence punishable under the Act shall be non-compoundable and non-bailable. Sherry Rehman thanked the Senate members for their support and said no law in the country criminalised or even explicitly defined torture. That is a lacuna this Bill seeks to fill in the shape of a comprehensive definition of torture and its various constituent elements. Torture by police and law enforcement agencies is endemic. The inhumane practice is considered a routine part of criminal investigation. Sherry Rehman reminded the house that as a signatory to international treaties, Pakistan had an obligation to criminalise torture, which remains widespread due to the impunity enjoyed by the perpetrators and is fuelled by socio-cultural acceptance of violence, procedural and legal loopholes and lack of independent oversight of the police. She said the sessions courts would now play the main role in taking cognizance of such cases and ensure investigations were initiated into complaints of torture, thus eliminating the possibility of police investigating complaints of torture on their own.
The Bill is a long overdue piece of legislation. Police behaviour in terms of torture and custodial deaths stems from colonial times, when people were the subjects of a foreign occupying power, not citizens with rights. Despite this abomination continuing intact after Independence, it has taken 74 years for the country to confront and attempt to overcome these heinous practices of long standing. Our police is steeped in the colonial mindset that does not recognize human beings as citizens with rights. This is referred to in common parlance as the thana (police station) culture. Knowing this well, the Police Act 2002 enacted during former military dictator Pervez Musharraf’s regime lifted even the (inadequate) check of an executive magistracy inherited from colonial times. This ‘freed’ the brutal and corrupt force from any constraint. It would be educative for research to be carried out on cases of torture and custodial deaths that may have seen the light of day (an overwhelming majority of such cases never do) before and after the Police Act 2002. While the Bill above finally criminalises torture and custodial deaths, etc., it has not adequately addressed the issue of independent oversight of such a well-known ‘criminal’ force. The sessions courts do not fit the bill because our lower courts are notorious for the hanky-panky that is rife in their proceedings. Perhaps the answer lies in setting up an institution of police ombudsman, who would hear and independently investigate complaints of torture and custodial death. And if possible, such an institution’s remit may be extended to the equally heinous practice of disappearing, killing and dumping citizens outside the ambit of any law.
Copyright Business Recorder, 2021
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