South Asians for Human Rights

Promoting Democracy, Upholding Human Rights

Published in The Dawn on Dec. 27 by Reema Omer ::

The release of the US Senate Intelligence Comm­ittee’s report highlighting the CIA’s appalling abuses against at least 119 detainees comes at a time when torture and ill-treatment are also in focus in Pakistan.

A private members’ bill was introduced some time back in the National Assembly by PML-N parliamentarian Maiza Hameed aiming to incorporate the Convention Against Torture and Other Cruel, Inhu­man or Degrading Treatment or Punishment (CAT), which Pakistan ratified in 2010, into domestic law.

The bill also seeks to provide for the prevention of “all acts of torture, custodial death and custodial rape perpetrated by public servants or any person acting in an official capacity” as well as protect “citizens of Pakistan and all other persons for the time being in Pakistan from such acts”.

A National Assembly bill against torture raises several points of concern.

Human rights groups have long demanded legislation to establish specific offences for torture and other ill-treatment and effective procedures to provide remedy to victims and to bring perpetrators to justice in accordance with Pakistan’s Constitution and international human rights law obligations.

In some ways, the Torture, Custodial Death and Custodial Rape (Prevention & Punishment) Bill, 2014, meets those demands: prohibiting the use of statements obtained through torture as evidence is in line with Article 15 of CAT; the definition of ‘custody’ to include all situations where a person is deprived of liberty by a public servant even goes beyond protections provided under CAT; and the express removal of the sanction provision for public servants, provided under Section 197 of the Code of Criminal Procedure, 1898, is an important step to ensure accountability.

In its current form, however, the bill also has many deficiencies. Of particular concern are the lack of adequate provisions for compensation, including by the state, for victims of torture and other ill-treatment; the failure to criminalise all acts of torture, at least as it is defined in Article 1 of CAT; the failure to criminalise acts that amount to cruel, inhuman or degrading treatment; the failure to provide for preventative measures, including express prohibition of incommunicado or secret detention; and the introduction of a punishment for so-called mala fide complaints.

In addition, a particularly alarming provision that risks making the law futile and ineffective is the proposed requirement for a special procedure for complaints against the security agencies.

Section 15 of this bill provides that where a complaint of torture is made against members of the armed forces or intelligence agencies, the Federal Investigating Agency must first “seek directions” from the federal government before launching an investigation.

This proposed provision is the latest in a series of attempts by Pakistani lawmakers to further shield security agencies from criminal proceedings and impede victims’ right to remedy when the security forces are accused of perpetrating human rights violations.

The National Commission for Human Rights Act, 2012, establishing a commission for the promotion and protection of human rights, provides that where there is a complaint of human rights violations against members of the armed forces, the commission may only seek a report from the government and make recommendations if it sees fit. The law also states that the commission’s functions “do not include inquiring into the act or practices of the intelligence agencies”.

Similarly, the Protection of Pakistan Act, 2014, Pakistan’s latest anti-terrorism legislation, provides retrospective blanket immunity to law-enforcement agencies “for acts done in good faith”, during the performance of their duties, including for acts that amount to human rights violations.

Legal immunities and other measures that shield the security apparatus from accountability lie at the core of the crisis of impunity for human rights violations in Pakistan.

Pakistani security agencies are accused of perpetrating grave human rights violations, including enforced disappearance, extrajudicial killings, as well as torture and ill-treatment. In a 2012 report, Amnesty International documented 19 cases of torture and ill-treatment, allegedly committed by the security forces during interrogation, in Fata.

In 2014 alone, the Human Rights Commission of Pakistan documented dozens of cases of torture and ill-treatment in military-run detention centres across the country. ‘Missing persons’ who are released from detention frequently report having been tortured and ill-treated in custody, and dead bodies of ‘disappeared persons’ are often found bearing torture marks.

In all these cases, it is members of the military and intelligence agencies who are suspected to be responsible. However, the authorities have not independently investigated the allegations, let alone brought perpetrators to justice. This has enabled, and perpetuated, impunity for human rights violations in Pakistan.

Under international human rights law, impunity means “the impossibility, de jure or de facto, of bringing the perpetrators of violations to account”. Pakistan’s international human rights law obligations, including under CAT and the International Covenant on Civil and Political Rights, require that the states take measures to eradicate impunity for violations of human rights.

Authorities must ensure the prompt initiation of independent, impartial and thorough investigations of allegations of human rights violations. They must also ensure that those responsible for perpetrating human rights violations are brought to justice in fair criminal proceedings, and that victims have access to effective remedies and adequate reparation.

Permitting impunity for members of the security forces is not only a violation of Pakistan’s human rights obligations, it also erodes public confidence in the security agencies, who, in addition to their other roles, are essential in preventing and responding to acts of terrorism.

Without effective mechanisms to determine the truth behind allegations of gross human rights violations and ensuring accountability of all public officials responsible, public trust and confidence in the security agencies, including in its counterterrorism efforts, will continue to be corroded.

It is, therefore, imperative that any legislation on torture and other ill-treatment must not shield the security agencies from criminal proceedings. Pakistan’s crisis of impunity must not be further entrenched.

The writer is a legal adviser for the International Commission of Jurists. ([email protected])