Joint Letter to the National Assembly: Draft Torture, Custodial, Death and Custodial Rape Bill

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NationalAssembly Secretariat
ParliamentHouse,
Islamabad– Pakistan

Lahore-Geneva,26 June 2015

Re: DraftTorture, Custodial, Death and Custodial Rape Bill

Dear Members of the National Assembly,

On the occasion of June 26, the International Day inSupport of Victims of Torture, the Human Rights Commission of Pakistan and theWorld Organisation against Torture very much welcome the introduction ofanti-torture legislation necessary to implement the UN Convention againstTorture (Convention). A comprehensive law on torture is a milestone in thefight against torture and recognizes the rights and values of the Constitutionof Pakistan.

On the basis of the Convention and our globalexperience on anti-torture legislation, we would like to take the opportunityto comment on the Draft Torture, Custodial, Death and Custodial Rape Bill(DraftBill). While the Draft Bill contains many important provisions, several draftclauses risk to frustrate the very purpose of the law. The latter includeprovisions on the special protection of the army and intelligence agencies,malafide complaints, and the supremacy of extradition treaties over non-refoulementprovisions.

Criminalization of Tortureand Cruel, Inhuman, and Degrading Treatment and Punishment

Article 4 oftheConvention requires state parties to “ensure that all acts of torture areoffences under its criminal law”. State parties are further obliged to inflictappropriate penalties which take into account the grave nature of the act. Wethus welcome the criminalization and punishment of torture, custodial death andcustodial rape in the draft Clauses 3 to 7.

At the same time, we regret that other forms of cruel,inhuman and degrading treatment (CIDT) are not regulated in the draft law. Articles16 and 12 of the Convention,require member states to promptly and impartiallyinvestigate complaints of torture as well as CIDT. Torture and CIDT areinterdependent, indivisible and interrelated and the threshold between them isoften not clear.[1]In addition, torture and CIDT are both absolutely prohibited.[2] Our experience furthershows that the conditions under which torture occur also facilitate CIDT. TheCommittee against Torture (Committee) has thus repeatedly raised concerns overthe lack of criminal responsibility for CIDT.[3]We therefore propose to extendthe application of all the clauses to CIDT.

Prompt and Impartialinvestigations

In Article 12, the Convention requestsprompt and impartial investigation.The Committee has further specified that such investigations should not be undertaken by orunder the authority of the police but by an independent body.[4]We thus very much welcome that the draft bill authorized the NationalCommission for Human Rights to investigate complaints. However, the NationalCommission for Human Rights is not yet functional. Although established by aBill in 2012, no commissioner has been selected. This means that in themeantime the jurisdiction to investigate rests with the FederalInvestigation Agency (FIA). The FIA, a counter-intelligence and securityagency, has been widely criticized for its covert operations related topolitical groups and parties on behalf of the government. By attributingjurisdiction to the FIA, the impartiality and independence of tortureinvestigations is jeopardized. We thus urge the National Assembly to putpressure on the government to finally establish a functional NationalCommission.

In the context of prompt and impartial investigations, we area alsoconcerned about draft Clause 15 that requires the FIA to seek instruction anddirection from the Federal Government when receiving a complaint against amember of the armed forces or the intelligence agencies. Various UN treatybodies have condemned requirements to seek permission from the governmentbefore investigating offences against army personnel. The Human RightsCommittee, for instance, urged India to abolish the prerequisite that “criminalprosecutions or civil proceedings against members of the security and armedforces, acting under special powers, may not be commenced without the sanctionof the central Government”.[5] These type of clausescontribute to a climate of impunity and deprive people of remedies.We thus stronglysuggest omitting Clause 15.

Inadmissibility of statements that have been obtainedthrough the use of torture

Under Article 15 of the Convention against Torture,evidence obtained as a result of torture shall not be invoked as evidence inany proceedings. The Committee against Torture has emphasized that suchprovisions are especially important where a criminal justice system relies heavilyon obtaining confessions for instituting prosecutions.[6] We therefore welcome draftClause 9 that makes statements extracted through torture inadmissible.

It is important to add that this prohibition alsoapplies to CIDT and not only to torture. The Committee has stated that Statesneed to ensure that anystatement or confessions made by persons in custodyascertained to have been made as a result of torture or ill-treatment shouldnot be admissible as evidence against the person.[7]

No exceptional circumstance may be invoked to justify torture

The Convention states in Article 2 that “noexceptional circumstances whatsoever, whether a state of war or a threat ofwar, internal political instability or any other public emergency, may beinvoked as a justification of torture.” This stipulates the absoluteprohibition of torture. Article 2 also applies to threat of terrorist acts, violentcrimes, and international or non-international armed conflicts.

Draft Clause 24 is thus an important provision that reflectsPakistan’s obligations under Article 2 of the Convention.

Preclude Malafide complaints

Draft Clauses 12 and 13 of the draft bill provide thattorture complaints with malafide intentions are punishable with imprisonment ora fine. Provisions on malafide complaints have proven to constitute seriousobstacles for torture victims as they strongly discourage victims to comeforward. A torture complaint as such already brings the risk of reprisals,especially if brought by victims who belong to the underprivileged and poor. Inaddition, provisions on malafide complaints are often abused in cases in whicha torture complaint has been rejected for the lack of evidence and not becauseof ill intent. We therefore propose to omit Clauses 12 and 13.

Prohibit expulsion to States where the person is at risk of beingtortured

Article 3 of the Convention states that “no StateParty shall expel, return ("refouler") or extradite a person toanother State where there are substantial grounds for believing that he wouldbe in danger of being subjected to torture.” The Draft Bill implements Article3 of the Convention by providing an almost identical provision in Draft Clause22 paragraph 2 Sentence 1.

However, sentence 2 of the same Clause has alimitation in favor of extradition treaties. Such a limitation is notcompatible with Article 3 of the Convention. The Committee has repeatedlystated that non-refoulement is absolute.[8] This means that thebalancing of interests between the individual’s rights not to be subjected totorture by means of expulsion/extradition and the compliance with internationalexpulsion treaty obligations are not permissible. In other words, if anindividual would be in danger of being subjected to torture if extradited, saidindividual cannot be extradited regardless of extradition treaties or similarobligations vis-à-vis aninter-governmental organization. We therefore propose to omit the secondsentence of Draft Clause 22 paragraph 2.

Meaningful redress includingcompensation and rehabilitation

The Draft Bill does not provide for meaningfulredress. Compensation is thesole form of redress foreseen in the Draft Bill. Inaddition, compensation is only granted if the torture perpetrator is foundguilty and fined according to draft Clause 4 paragraph 3. Since it is theactual fine that is transferred to the victim, the victim is only compensatedif the perpetrator pays the fine. This is not compatible with the Convention thatrequires prompt, fair and adequate compensation regardless whether theperpetrator is found guilty and pays a fine. When a representative of the stateinflicts torture, it is the primary responsibility of the state to compensatethe victim.

Furthermore, it is important to stress that compensationfor torture and the criminal responsibility of the perpetrator are notnecessarily connected. It might be established that torture was inflicted, butthe perpetrator cannot be held responsible for procedural reasons such as a statutoryperiod of limitation. The system of compensating thus needs to be detached fromawarding of fines.

Moreover, compensation alone is not sufficient redressfor a victim of torture. The Committee has repeatedly stated that Article 14 ofthe Convention requires member states to enact other forms of redress includingrestitution, rehabilitation, satisfaction and guarantees of non-repetition.[9]We thus propose to includea Clause in the Draft Bill that enables torture victims to seek full redress.

On this daydedicated to the victims of torture, we would like to remind the NationalAssembly of its promise to eradicate torture and to implement the Conventionagainst Torture. In the light of the above we ask you to pass the DraftBill with the proposed amendments.

We thank youfor your attention to this important matter.

Yourssincerely, GeraldStaberock, Secretary General OMCT
ZohraYusuf, Chairperson of the HRCP

[1] General Comment No. 2, Implementation of article 2 by States parties,UN Doc. CAT/C/GC/2, 24 January 2008, para. 3.

[2] See e.g. Concluding Observation on Zambia, UN Doc. CAT/C/ZMB/CO/2, 26May 2008, para. 5.

[3] See e.g. Concludings Observation on Mongolia, UN Doc. CAT/C/MNG/CO/1,20 January 2011, para. 9.

[4] See e.g. Concluding Observations on Kyrgyzstan, UN Doc. CAT/C/KGZ/CO/2,20 December 2013, para. 6d; Concludings Observations on Yemen, UN Doc.CAT/C/YEM/CO/2Rev.1, para. 16.

[5] HRC, Concluding Observation on India, UN Doc. CCPR/C/79/add.81, 4August 1997, para. 21.

[6] See e.g. Concluding Obsercation on Japan, UN Doc. CAT/CJPN/CO/2, 28June 2013, para. 11

[7]Concludings Observation on Mongolia, UN Doc. CAT/C/MNG/CO/1, 20 January2011, para. 18.

[8]Concludings Observations on Japan, UN Doc. CAT/C/JPN/CO/2, 28 June 2013,para. 9.

[9] General Comment No. 3, Implementation of Article 14 by State parties,UN Doc. CAT/C/GC/3, 13 December 2012.