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Custodial Torture, The Ramifications And Failure Of Institutions

This research examines custodial torture in Pakistan, exploring the failure of institutions to prevent it despite laws and treaties. The study delves into the social and economic aspects of torture, examining official responses, common perceptions, and impunity issues. Various cases and viewpoints are presented, shedding light on the prevalence of torture, particularly in law enforcement agencies. The research highlights the lack of trust between police and intelligence agencies, the unfortunate role of forensic examinations, and how legal gaps perpetuate torture. Recommendations for addressing these challenges are discussed.

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Custodial Torture, The Ramifications And Failure Of Institutions

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  1. Custodial Torture, The Ramifications And Failure Of Institutions Researcher and Presenter JaveriaYounes

  2. Methodology

  3. Total sample size with city wise break up

  4. The first in Pakistan

  5. Why article 14 of the constitution of Pakistan fails to curb torture?

  6. Why torture is so rampant despite laws and treaties banning the act?

  7. Why UNCAT is unique • With over 135 signatories, the CAT contains the most commonly used and widely endorsed definition of torture. • UNCAT is a consensus representative of customary international law, most nations agree to the definition. • It does not limit the definition of torture as is provided in the local legislation of the signatory states by stating in Article1 clause 2 that 2. This article is without prejudice to any international instrument or national legislation which does or may contain provisions of wider application. • The use of the term “act” also includes omission where there exists a legal duty to act, it will deemed to include a failure to act ,as defined under CAT, for example failure to provide food or drink to a prisoner in custody.

  8. The socio-economic aspect of torture in Pakistan

  9. Response of the law enforcement agency’s official on whether torture is rampant in thannas

  10. Response Of Police Officer Upon Being Asked If They Had Ever Used Torture To Elicit Confession

  11. Reported Cases Of Death In Custody In KarachiAs Per The Records Of Civil Hospital Karachi

  12. Rise In Incidence Of TortureAs Per The Records Of Madadgar Helpline

  13. Common Perception Of The Masses About Police Thanna culture discourages common man to approach police for justice. The common perception amongst the masses is that people do not trust police officers and would rather not report heinous crimes because they fear the police would implicate the sufferer rather than seek the culprit

  14. LEA Official response upon being asked whether Torture is used as a tool to seek political vendetta from political opponents and minority? “Torture is used for extracting self implicating confessional statements from an innocent person to drag him into the mire of criminal justice system. Political vengeance as well as property issues, and family feud often lead to feuding parties implicating each other in fake criminal cases. Police is often bribed to torture an innocent victim.” Mr. Hassan A senior Lawyer from Peshawar

  15. Impunity to the LEA to maintain writ of the state • Some police officers in Karachi and Quetta we interviewed were of the firm believe that cultivating fear amongst the population will bring down the crime rate of the area. • Some extra judicial killings are motivated by personal monetary gain: police killings occurring at police checkpoints, where attempts at extortion can escalate into extrajudicial executions. Extra judicial killing is usually used to wipe out evidence of custodial torture. • The underprivileged being the most vulnerable segments of the society are most targeted by the LEA • Extra judicial killing is not generally taken up by the court. Because of non availability of the evidence. Rarely any police officer is indicted in the cases of extra judicial killing.

  16. Impunity of the Agencies Intelligence agencies in Pakistan are notorious for quashing the head of dissent using torture. Police torture is openly condemned by the judiciary and departmental enquiries are sometimes initiated. Torture in custody by the intelligence agencies is never reported and no enquiry can be initiated against the army personnel, police too does not register an FIR of the missing person There is a general lack of trust between police and Agencies

  17. Torture cell maintained by the LEA

  18. Forensics of Torture Often the sufferer of torture are denied justice because of lapse of time causing injuries to heal. Police officers are also encouraged to use techniques that will cause minimum abrasion and maximum impact on the body. Those who are held in detention by the agencies will never report torture because of the high handedness of the agencies official. As there are no torture marks the magistrate will not order a medical examination even if the victim complain of torture. The corruption in forensic department also discourages people from seeking justice against torture. The MLO at Civil hospital confessed that they indulge in corruption.

  19. Legal Lacunas Help Perpetuate Torture The torture victim is already so caught in court proceedings for the crime he has not committed that he would rather not complain of torture fearing further judicial proceedings. Even if the culprit is reprimanded, the police extract revenge by filing fake cases against the victim.

  20. Disciplinary action against the perpetrator of torture is very lenient, and they do little to discipline the errand officer.

  21. Absence Of Law Has Adverse Effect • Without the enactment of torture act torture cannot be made a criminal offence and liable to punished, as we have seen in a number of cases • Our survey reveals that 59% of the police officers surveyed think that given the current law and order situation in Pakistan the law enforcement agencies should be given more power to manage the anarchy.

  22. There Is An Urgent Need To Promulgate A Law Against Torture *Based on our survey of the Lawyers and Social Activists

  23. Why Anti Torture Bill Presented In Senate Will Fail To Deliver? • The Torture, Custodial Death and Custodial Rape Bill,2014” moved in August 2014 was passed by the senate standing committee on 21 January 2015. • The definition of torture as prescribed by the bill does not encompass “omission. • The definition states that “Torture” means an act committed by any person, including a public servant. By using the term “any person” the legislator are including a common man within the ambit of what is necessarily an act of the state institutions and law enforcement agency.

  24. Clause 12 of the bill makes malafide complaint against the public servant a punishable offence with 1 year imprisonment and 100,000 Rs fine which is completely unjustifiable. • Clause 14 of the Bill vests the FIA with exclusive jurisdiction to investigate complaints until such time as the National Commission for Human Rights (NCHR) is functional • Clause 15 of the bill has vested the responsibility of investigation to FIA which instead give a cover to the perpetrator the investigation body should be separate from the institutions whose official is being implicated.

  25. Clause 15 also specifies a separate procedure for complaints against members of the armed forces and intelligence agencies. In such cases, the FIA is to inform the Federal Government and act according to its directions • Clause 16 provides for the transfer or suspension of the public servant pending investigation which is atrocious allowing the perpetrator to perpetuate the practice at a different jurisdiction. • The accountability mechanisms as envisaged in the bill are faulty and serve no purpose. The bill needs to elaborate on the responsibilities of the investigation body and the procedure that it must follow

  26. Recommendations • UNCAT awareness according to our survey There is an urgent need to work on the perception and understanding of UNCAT.NGO should play an active role in raising awareness about the convention amongst the masses and legal professionals.

  27. Free legal aid and support group for the victim of torture. These support groups will provide counseling to the victims and guide them on legal matters • Torture complainant should be protected from institution of frivolous cases against them the magistrate and judge must be more vigilant with such case. And should immediately quash the case if no cause of action is made out. • Magistrate should be more vigilant with the appearance of the accused as a majority of the victim according our survey,48.7% of the respondent said they did not report the incident of torture while 46.3% said they complained but there was no response from the judicial magistrate.

  28. Victims should be encouraged to report the injuries immediately. • Victims should be allowed to challenge the MLO’s report. The report of an experienced private medical practitioner or a certificate should be allowed and admissible as an evidence of torture • IO report are not satisfactory as 80% of the lawyers and 66% of the magistrates surveyed termed the IO’s report as unsatisfactory. Police training academies should lay special emphasis on preparing investigation report of all junior officers. • Social science should be taught at under grad level to sensitize the society against human right abuses generally and torture specifically.

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