In 1990, my younger brother Babar was tortured in police custody. It happened in Lahore after his arrest in another city. In the middle of the day, on a very busy road he was dragged into a police vehicle by a large contingent of uniformed men. No warrant was shown. No explanation was given.
A student of Aitchison College and a sportsperson, Babar took great pride in his horsemanship and ability to excel at most outdoor activities.
When the Punjab police tortured my brother, my father was serving as a very well-connected, high-level bureaucrat in Lahore, and my older brother was a recent entrant in civil service.
At the time of torture in police custody, my brother Babar was 18.
After that one night in police custody, Babar’s life was never the same.
Babar was tortured for hours. His backbone was damaged. The rest of his life was a series of treatments, medications, surgeries, desi remedies, prayers. One of his legs became almost paralysed at a later stage. There were brief pain-free periods. Over time, his physical strength that he was so proud of in his teens diminished, bit by bit.
My mother passed away in 1999 with a wordless unheard prayer in her soul for her beloved son. My two siblings and I witnessed our youngest brother’s pain for decades, our hearts shattering a little every time we saw his stoic face, his refusal to ask for help, his uncomplaining forbearance.
There were other things Babar could not do. He never got a chance to teach his only son how to ride a horse, give him swimming lessons, go on a hike together, play football, take a long holiday.
Babar’s broken body shadowed all aspects of his familial and other life. The perpetual pain presaged every decision that he took, every therapy that did not work, every agonised step that he walked.
My brother Babar’s pain did not end until he passed away in 2019. He was 47.
Custodial torture, the severe kind, damages bodies, minds, and souls in a manner that even when scarless the agony shapes everything in your life for a very long time if not forever. My brother is just one of the millions of Pakistanis whose entire life was marked by a few hours of torture in custodial detention. And that too, as an innocent 18-year-old. For me there are fewer things worse than inflicting pain on human beings to extract information, or to change their set of beliefs, or to coerce a confession, or to betray someone.
That is why I immediately contacted Senator Sherry Rehman, PPP Vice President and PPP Parliamentary Leader in Senate, when on July 12, 2021 she tweeted: “Jubilant that Senate unanimously passed my Prevention of Torture and Custodial Death Bill just now. I want to thank all senators including @Mustafa_PPP & Min @ShireenMazari1 for the work they put into this bill with me in Committee. Pakistan finally on way to criminalising torture.”
Sherry spoke in the Senate: “The Torture and Custodial Death (Prevention and Punishment) Bill, 2021 protects the poor and vulnerable the most. Criminalising torture is the urgent need of the hour.”
The anti-torture bill is not the first one tabled by one of the most prolific and one of the most dynamic politicians of Pakistan. Currently, Chair of the Foreign Affairs Standing Committee in the Senate, Chair of PPP’s Committee on Foreign Affairs, and Founding Chair and President of the Jinnah Institute, Sherry is a Nishan-e-Imtiaz awarded fourth-term parliamentarian, a former journalist, and a civil society activist. Sherry’s list of governmental portfolios is stellar: Leader of Opposition in Senate, Pakistan’s Ambassador to the United States, Federal Minister for Information and Broadcasting, and Minister of Health, Women Development, and Culture.
The list of human rights bills tabled by Sherry Rehman is so long and so remarkable in its consistency of purpose and linear dedication to the causes of women and the most vulnerable of society, my respect for her is immense: Women Empowerment Bill 2002; Architect of First Parliamentary Charter & Bill for Women Empowerment 2002; Hudood Ordinances Repeal Bill 2003; Anti-Honour Killings Bill 2003; Freedom of Information Act 2004; Affirmative Action for Women Bill 2005; Domestic Violence Bill 2006; Protection against Harassment of Women at the Workplace Act 2010; Protecting Women’s Right to Vote 2016; Electoral Reform Bill 2017 (This bill allowed for repolling in constituencies where less than 10 percent women voted); Child Marriage Restraint (Amendment) Bill 2018; Limiting Supplementary Grants Bill 2019; Torture and Custodial Death (Prevention and Punishment) bill 2020; The Islamabad Capital Territory Domestic Workers Bill, 2021; Anti-Discrimination Bill 2021 (work in progress)
I asked Senator Sherry Rehman a few questions:
Mehr Tarar: What was the most important impetus behind your decision to table a bill against custodial torture?
Senator Sherry Rehman: The suffering, degradation and even death that people can be put through in the criminal justice system needs to change. Torture by police in custody is endemic in Pakistan, unfortunately, as a postcolonial hangover we should have filtered out of our system. The inhumane practice is so common it is largely considered a routine part of a criminal investigation.
Often a gruesome tool of abuse under the guise of interrogation, torture is also widely used to obtain forced confessions as well as extortions from vulnerable people all over law enforcement custody in South Asia—whether in the criminal justice system or just citizens in general, especially those with no connections to the corridors of power.
I am not alone in feeling that if Pakistan is serious about dismantling the use of torture from its policing methods, then it must begin by dismantling the impunity with which the practice is routinely carried out in its most deadly forms across the country with chilling regularity, especially in the lockups of Punjab where countless deaths via torture in custody have been reported last year. No province, however, is exempt from this practice.
Does the anti-torture bill incorporate Pakistan’s international obligations underscored in the UN Convention Against Torture and Cruel Inhuman or Degrading Treatment or Punishment?
As a signatory to international treaties, Pakistan has an obligation to criminalise torture, but there is a clear deficit in our rights architecture that there is currently no existing law in Pakistan that criminalises or explicitly defines torture. Now this legislation will provide a comprehensive definition of torture, delineating its various constituent elements while addressing different components of the issue.
It is a substantive law that stipulates express penalties for torture ranging from imprisonment to fines. In my view, it is a much-needed law that is long overdue and will, if effectively implemented, protect the lives and dignity of our people.
To specifically address your query, the exhaustive definition in Section 2 n is in line with the elements of Article 1.1 of CAT: “For the purposes of this Convention, the term ‘torture’ means 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.”
How has the term “torture” been defined in The Torture and Custodial Death (Prevention and Punishment) Bill, 2021? Will the bill cover different acts that constitute torture and hold all law enforcement agencies accountable?
In the absence of an existing law in Pakistan that criminalises or unambiguously defines torture, this Bill provides a comprehensive definition of torture, explicitly delineating its constituent elements.
Section 2 n) states: “‘Torture’ means an act committed by a public servant, or at the instigation of or with the consent or acquiescence of such public servant, or any other person, with specific intent to inflict severe pain or suffering, whether physical or mental, not incidental to lawful sanctions, upon another person within his custody, for the purpose of: obtaining from that person or some other person any information or a confession; or punishing that person for any act/s he or a third person has committed or is suspected of having committed; or intimidating or coercing that person or a third person; or for any other reason based on discrimination of any kind; or harassing, molesting, denying due judicial process or causing harm whether physical or mental to a person for any of the above purposes.”
This exhaustive definition encapsulates within its scope both physical and psychological torture, the latter category being one that has traditionally not been ascribed as much significance as physical pain and suffering.
Does the bill include any redressal mechanisms that are imperative for autonomous supervision to avoid any institutional interference and selective application of liability?
In light of the inherent flaws in the existing framework where reporting of torture and subsequent investigation is carried out by the police, and they may refuse to register FIRs against other members of the police, the Bill establishes a comprehensive complaints and investigative procedure: the complainant must lodge the complaint before the Sessions Court. The court will then direct the FIA (primary and not sole) investigative agency to conduct the investigation within a set period and with oversight from the court. The NCHR also has the power of oversight under the National Commission for Human Rights Act 2012.
The anti-torture Bill specifically states in section10: “Investigation of Offences – The Agency shall have the primary jurisdiction to investigate the complaints against offences under this Act, until such time as the Commission is functional with an investigative infrastructure notified for the purpose.”
If a magistrate feels there may have been torture, he orders a medico-legal certificate, and if the results point towards torture, the Sessions Court will be notified to take cognizance.
This framework effectively removes the possibility of police making arrests without warrant and initiating the investigation into complaints of torture on their own. There is now a layer of scrutiny, oversight, and regulation from the court to ensure that complaints of torture are actually investigated. The Sessions Court will now play the main role in taking cognizance of cases and ensuring that investigations are initiated into complaints of torture.
Does the bill include any gender specific provisions to abolish sexual violence used in some cases as an investigation and harassment tool by law enforcement personnel?
The Bill explicitly criminalises sexual violence committed in custody, defining the aforementioned as “rape” or “sexual abuse” or “any kind of sexual violence on a person…irrespective of the sex and gender of the perpetrator or the victim.” In doing so, it encapsulates within its realm all those forms of sexual violence that do not conform to the traditional definition of penetrative rape, in cognizance of the myriad kinds of sexual violence that are inflicted during police custody.
Importantly, the definition of sexual violence is gender inclusive as it explicitly refers to all forms of sexual abuse or sexual violence regardless of the gender of the perpetrator or the victim, creating a sphere of protection for men against custodial sexual violence and combatting the traditional heteronormative definition of rape in the Pakistan Penal Code for which penetration is a prerequisite.
Do you foresee any kind of opposition to the passing of this bill in National Assembly?
Well, anything is possible in the polarised legislative climate we have in parliament today. The National Assembly is quite unpredictable in its proceedings, as the government takes to political confrontation very routinely, leading to legislative paralysis. The majorities are different in both Houses, so here the government will have to explicitly support it. In the Senate the opposition still has a thin majority so there is little point in opposing us if we have the numbers and motivation and were united behind this bill as we were.
Laws unless properly implemented, followed, and practised do not engender a real, long-term change. What steps can be taken to ensure infallible execution of the anti-torture bill after it is passed in both houses of parliament?
Create awareness regarding the Bill, and the need to prevent abuse of law enforcement powers. Citizens should know of their rights in order to exercise them. Police and law enforcement agencies need to be given training based on this Bill. Strict implementation of the penalties is needed for the punishments to have a deterrent effect.