Policing is delicate business. To understand police excesses — defined in terms of abuse of authority, brutality and torture — it is important to put the concept of policing in the context of the modern state and its control of the population.
Police at the basic level is a body of officers (and men) who represent a government’s civil authority — i.e., police are responsible for maintaining internal public order and safety. This function, typically, requires enforcing the law and preventing, detecting, and investigating criminal activities. In other words, policing is a coin with one end marked as ‘service’ and the other as ‘enforcement’. Service to the law-abiding people in a state whose life and property must be protected against unlawful and/or violent acts and enforcement of law against those who break it.
The delicate lines relate essentially to enforcement. In a 2000 paper for Policing: An International Journal of Police Strategies and Management, Budimir Babovic, a police researcher in Yugoslavia, identified the problem thus: [While] both brutality and torture are viewed as cruel and violent behaviour… police officers have the authority to be brutal since they have the right to use force in some circumstances.”
This statement while legitimate is also problematic. What are those circumstances when officers can be brutal in the application of force? Who will decide on proportionality? As an August 2021 statement by the United Nations Human Rights Commission’s Office of the High Commission stated, “UN human rights experts have expressed alarm at what they describe as ‘rampant police brutality against peaceful protesters worldwide’ and warned States of the grave danger arising from such abuse for human rights and the rule of law.”
The statement further said: “In recent months and years, we have repeatedly voiced our concern over a steady increase in the use of excessive force, police brutality, and other forms of cruel, inhuman or degrading treatment, as well as arbitrary detention, against predominantly peaceful protesters in all regions of the world.”
There has indeed been a growing global trend towards excessive use of force by the police and more brutal tackling of protests even in the developed states. The United States offers a good example of that. In many cases, racial discrimination has increasingly led to police officers using lethal force against African Americans and other non-whites. The UN has recorded evidence that many, if not all, cases of police excesses are rooted in political, socio-economic, ethnic, racial, religious, or other tensions specific to particular national or regional situations.
The situation in South Asia — Pakistan, India and Bangladesh — has traditionally been bad both in terms of police brutality and police torture. Justice Project Pakistan (JPP), a legal action non-government organisation that represents vulnerable Pakistani prisoners, put out a report in February 2019, titled Policing As Torture. The report looked at dataset on police torture from the district of Faisalabad (it’s available at the JPP website).
Of the 1867 medico-legal cases in Faisalabad between the years 2006-2012, doctors confirmed injuries related to torture in 76% cases. In 96 other MLCs, evidence of injury was found but could not be confirmed as resulting from police torture. As should be obvious, this is just one dataset and ends at 2012. There is a clear need to expand this effort to other districts in Pakistan and also update it.
In 2010, Pakistan signed and ratified the United Nations Convention Against Torture and Cruel Inhuman and Degrading Treatment (UNCAT), making it legally binding on the country to bring its domestic law(s) in conformity with UNCAT. That has not happened so far. In a 2022 paper — “Does Criminalizing Torture Deter Police Torture?” — for American Journal of Political Science, Mark Berlin, Assistant Professor in the Department of Political Science at Marquette University, argues that while “Much research casts doubt on the effectiveness of legal norms for improving respect for human rights,…such studies have mostly focused on treaty ratifications or constitutional provisions.” Berlin proposes that dealing with the problem of police torture should focus on “national criminal law” because “criminalisation of torture is more likely to deter police torture than these other forms of legal prohibition.”
Berlin’s argument is grounded in increasing the cost of torture for the police. As he points out, “criminalisation more credibly increases the threat of material and social costs of torture, while also helping to catalyse mobilisation that amplifies these deterrent effects.” He grounds his argument in quantitative analysis: “Using an original, global dataset on national criminal laws against torture, I find that states that criminalise torture and define it in line with the standards codified in the UN Convention against Torture experience reductions in police torture.”
Somewhat ironically, there have been attempts in Pakistan to make laws to criminalise torture. A March 2021 report by JPP details these efforts — Criminalising Torture in Pakistan: The Need for an Effective Legal Framework.
The report states that “There is no mention of torture under Pakistan’s two primary criminal codes: the Pakistan Penal Code 1860 (PPC) and the Code of Criminal Procedure 1898 (CrPC).” While “The Penal Code stipulates penalties for certain acts of torture under related offences such as ‘causing hurt to extort confession or to compel restoration of property’, ‘wrongful confinement to extort confession or compel restoration of property’ or provisions governing ‘criminal force and assault’,” it does not “encompass all the components of torture as outlined under Article 1 of the UNCAT”.
Similarly, “Article 156(d) of the Police Order 2002 provides penalties against any police officer who inflicts ‘violence or torture’ upon any person in his custody,” but it does not define torture and does not extend the provision to “other public officials.” As the report points, “It [also] fails to distinguish torture as an offence distinct and more severe than the mere infliction of violence by police officers and as a result, fails to satisfy Pakistan’s obligations under the UNCAT.”
Corollary: Pakistan needs a robust, comprehensive law that criminalises torture.
One attempt was made by the Pakistan Muslim League-N (PML-N) MNA, Maiza Hameed in 2014 when the bill was presented in the National Assembly. It was approved by the sub-committee of the NA’s Committee on the Interior in January 2017. It identified the Federal Investigation Agency (FIA) as the body to investigate and prosecute torture cases and declared the offence of torture to be non-bailable and non- compoundable.
Another attempt at such a law was made in 2014 by Pakistan People’s Party (PPP) Senator Farhatullah Babar. It was passed by Senate in March 2015. This bill also identified the FIA as the agency to investigate and prosecute torture cases and declared the offence of torture to be non-bailable and non- compoundable.
In 2015, another PPP Senator, Farooq Naek, tabled a bill in Senate. This bill proposed to set up a special agency, National Crime Agency, to investigate and prosecute torture cases. It contained due process obligations in extradition cases and also included provisions related to victim and witness protection. It did not expressly prohibit compounding of the offence of torture.
What happened to these bills? The JPP reports tells us that “As of 2015, [these] three similar draft bills on the prohibition and criminalisation of torture were pending in Parliament; two of them in the Senate and one in the National Assembly.” (The details can be found in the report, which is available online.)
What next? The government informed the UN Committee on Torture that it had prepared a Torture and Custodial Death (Prevention & Punishment) Bill, 2018, to bring national legislation in line with UNCAT. It also claimed that the bill would address the definitions and punishment for torture. So far, the bill has not been tabled despite commitments made by the Federal Minister of Human Rights in January 2019 to table it in the next NA session. The NA has since had eight sessions and three joint sessions.
The JPP report indicates that “Most recently, the Government of Pakistan in its voluntary pledge submitted in June 2020 as part of its candidacy to the United Nations Human Rights Council, stated that the Torture, Custodial Death and Custodial Rape (Prevention and Punishment) Bill 2018 has reached the consideration stage of the National Assembly/Senate.” In reality, the government has yet to table the bill.
Meanwhile, Senator Sherry Rehman of the PPP tabled a bill, Torture and Custodial Death (Prevention and Punishment) Bill 2020, on February 10, 2020. This bill was approved by Senate’s Functional Committee on Human Rights in July 2020. Some seven months later, on February 1, 2021, the report of the Senate Committee was finally presented in the upper House. More than a year has passed since without the bill being presented “to the wider Senate for final voting”. It cannot be presented in the NA without the vote in Senate.
Result: Pakistan remains without a law criminalising torture.