By: Tayyaba Jabeen
Custodial torture, often perpetrated by law enforcement agencies, serves as a tool of injustice, leading to a decline in the integrity of Pakistan’s criminal justice system. Unfortunately, despite advocacy against torture and degrading treatment in custody, police brutality and custodial torture remain deeply ingrained in the system, alongside other corrupt practices such as wrongful arrest, malicious prosecution, custodial deaths, and sexual harassment.
Regrettably, the state fails to uphold the standards set by the Constitution and international instruments, eroding public faith in the legal system. Amnesty International’s visit to Pakistan in 1989 revealed alarming violations of international laws and the country’s own Constitution, including torture, extra-judicial killings, police brutality, and custodial rape.
The Constitution of Pakistan guarantees fundamental freedoms and due process of law under Article 4, but the reality contradicts these protections. The Code of Criminal Procedure (CrPC) grants wide investigation powers to the police, leading to arbitrary arrests and detentions. Additionally, Section 167 of the CrPC allows for police remand, facilitating brutal practices despite being prohibited by Article 14 of the Constitution.
Both domestic and international laws, such as Article 5 of the Universal Declaration of Human Rights (UDHR) and Article 10 of the International Covenant on Civil and Political Rights (ICCPR), condemn and prohibit custodial torture and degrading treatments. Moreover, Pakistan is a signatory to the United Nations Convention against Torture (UNCAT), which requires concrete steps to mitigate torture and human degradation in custody.
The judiciary has condemned custodial torture in various cases, citing violations of Constitutional rights. Norway’s progressive prison system, emphasizing rehabilitation and community punishment, serves as a model, but its implementation in Pakistan may pose challenges due to financial constraints.
Although attempts have been made to criminalize torture, it remains politically and socially acceptable, hindering effective implementation. The recent enactment of the Torture and Custodial Death (Prevention and Punishment) Act, 2023, was lauded for criminalizing torture. However, the Act itself has deficiencies, such as Section 11, which threatens complainants with punishment if they file mala fide complaints, deterring the public from reporting abuses.
In conclusion, while the Torture and Custodial Death (Prevention and Punishment) Act, 2023, was a necessary step, its effectiveness hinges on an efficient implementation mechanism. The government must address its apparent breaches and violations, ensuring the Act is more than just a ‘dead letter’ devoid of enforcement.”
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