PAKISTAN: Council urged to tackle endemic torture and impunity, or become irrelevant
FOR IMMEDIATE RELEASE
February 24, 2011
ALRC-CWS-16-08-2011
Language(s): English only
HUMAN RIGHTS
COUNCIL
Sixteenth session, Agenda Item 3, Interactive Dialogue with the
SR on torture
A written statement submitted by the Asian Legal Resource Centre (ALRC), a non-governmental organisation with general consultative status
PAKISTAN: Council urged to tackle endemic torture and impunity, or become irrelevant
The Asian Legal Resource Centre (ALRC) wishes to again bring
the Human Rights Council’s attention to the widespread and endemic nature of the
use of torture in Pakistan. The ALRC has raised this issue repeatedly with the
HRC and the Commission on Human Rights before it, as well as the Special
Procedures and the UPR process. International action concerning grave human
rights abuses in Pakistan, including torture, forced disappearance and the like,
remains elusive.
The recent situation in Egypt, in which violations of
human rights perpetrated over prolonged periods have led to a historic popular
uprising to overthrow the system of abuse, must bear lessons for the
international community. No longer can the members of the Human Rights Council
expect to continue with business as usual, trading in the rights of their
citizens as expendable commodities to be haggled away for political gain as part
of a diplomatic game in Geneva. As the battle to advance the enjoyment of human
rights and democracy plays out on the streets of Tunisia, Egypt and elsewhere,
will the Human Rights Council find itself increasingly out of touch and isolated
from a reality that demands progress and tangible change?
As the 2011
review of the Human Rights Council reaches its culmination, member-States must
re-consider their misconstrued approaches that seek to limit the capacity of the
international system to fulfil its role in upholding rights on the ground. The
HRC must be able to go beyond the ritual expression of concern at flashpoint
crises around the globe, which typically remain either too timid or go unheeded,
and begin to tackle the fundamental components of the systems of human rights
abuses that pervade the world. The fact that members of the HRC, such as
Pakistan, can hold membership in the world’s apex rights body while endemic
torture persists within their borders, shows how much progress is still
required.
As such, the ALRC calls on the members of the Human Rights
Council to ensure that membership is absolutely conditional on the absence of
gross and widespread abuses, and that the practice of regional clean slates in
Council elections be outlawed across the board with immediate effect. To put a
halt to such grave human rights practices, there needs to be acknowledgement by
States of the nature and scale of the problems they face in eradicating such
violations. Denial cannot work in the longer term. The systems of abuse and
impunity that enable widespread violations must then be understood and effective
action, not that designed to save face or cover up and shield perpetrators, must
be initiated.
As mentioned above, the ALRC has repeatedly pointed to the
widespread use of torture in Pakistan. In written and oral submissions it has
pointed to the existence of some 52 secret detention and torture camps run by
the military in and since 2008.1 However, the Council has remained
oblivious to these serious allegations, rather than taking the required action
to shed light on these and put a halt to this practice.
The lack of
action is reinforcing the impunity with which such grave rights violations are
being perpetrated. The ALRC has noted that acts of torture are increasingly
being perpetrated in public in Pakistan, which indicates how little the
perpetrators fear that they will ever be held accountable. Perhaps the most
significant illustration of this is the increasing amount of video evidence that
is available online in which State agents are seen beating and torturing persons
in public. Examples of the army and police ill-treating and torturing persons
can be seen here:
http://www.dailymotion.com/video/xaodvt_video-shows-pakistan-army-abuse_news
http://www.youtube.com/watch?v=Ul7gERJR-Aw&feature=related
http://www.youtube.com/watch?v=-U8s6C3lhQ0&feature=related
http://www.youtube.com/watch?v=6MrJu5jL_yQ&feature=related
Torture is accepted as being an important tool for controlling
crime in Pakistan. The government of Pakistan, when ratifying the Convention
Against Torture (CAT) and the International Covenant on Civil and Political
Rights (ICCPR), made reservations concerning key articles, depriving these
instruments of much of their ability to be effective in countering human rights
violations, notably torture. With regard to the CAT, the government of
Pakistan’s reservations, which include Article 4 of the CAT2, result
in it not criminalizing torture under its domestic law. Through its
reservations, the government has provided impunity to the perpetrators.
The acts of ratifying the CAT and ICCPR have had no effect in preventing
the use of torture, punishing perpetrators or providing avenues for victims
seeking redress. After ratifying these mechanisms the ALRC has continued to
receive frequent cases of torture that point to a widespread, endemic pattern of
abuse.
The indifferent attitude of legislators has meant that no action
to criminalize torture has been taken. Pakistan does not have any specific law
relating to torture, although Article 14 (2) of the Constitution expressly
prohibits the use of torture for extracting evidence. Many jurists and academics
however maintain the opinion, that the provisions in Chapter XVI of the Penal
Code (particularly Sections 339, 340 and 349) cover the aspect of torture. But,
torture, within the meaning attached to the 'act of torture' as prescribed in
the Convention against Torture, is not a specific crime in Pakistan.
Domestic jurisprudence concerning the use of torture is underdeveloped
in Pakistan. The right to remain free from torture, as envisaged under Article
14 (2) of the Constitution, remains in theory rather than practice. In making
complaints concerning torture, the victims have the burden of proof, and there
are no independent investigating agencies that are empowered to inquire into a
complaint of torture.
The apathy of the President of Pakistan concerning
this is a serious disappointment, notably given that he was tortured in 1999
when in police custody. High-ranking police officials reportedly tortured him by
cutting his tongue, but the perpetrators continue to enjoy impunity despite
criminal cases having been lodged against them. The courts have been delaying
the cases for eleven years and even released the perpetrators.
In cases
of torture, the close nexus between the police and presiding officials of the
lower courts, works to ensure impunity. In criminal case, the courts place
accused persons with the police for four to 15 days of physical remand. This
period enables torture to be carried out with ease. The military also run
torture camps in most cities, as mentioned above. Members of the military’s
notorious Inter Services Intelligence (ISI) agency are serial torturers. In one
case, they even severely tortured a soldier over a period of five years on
suspicion of his being a spy for India. Mr. Mohammad Iqbal Awan, 39, son of
Mohammad Yaqoob Awan, a resident of Salakan village, Tehseel Athmuqam, Neelam
district, Baiyan, Azad Kashmir, Pakistan, was arrested by the ISI and then
disappeared for five years, during which period he was repeatedly tortured. He
lost teeth, his spine was fractured, his legs were burnt and he has a large
injury mark on the head. He cannot walk without help. The victim was later
exonerated from all charges by a court martial at the Kharian cantonment, Punjab
province. 3
A torture cell was located at a private house
adjacent to the Air Headquarters of Pakistan Air Force in Islamabad, where
officers would torture civilian staff, notably low paid employees. The torture
cell was brought to light when the case of a poor Christian girl and her
brother, who were tortured there for almost 18 days, was made
public.4
Journalists are also not spared by the intelligence
agencies. Mr. Umer Cheema, a senior journalist from the daily newspaper, The
News International, was abducted, severely tortured and detained incommunicado
to intimidate him. Reports suggest that persons from the intelligence agencies
carried out the act. The government has still not been able to arrest the
persons responsible for the abduction and torture.5
In these
cases, no action has been taken against military personnel, as the military
dominates all civilian, democratic institutions in the country, placing members
of the armed forces above the law as concerns human rights violations. Even the
higher courts turned down the cases against members of the armed forces before
they can be heard.
In many cases, torture victims who have been forcibly
disappeared, are dumped by the roadside. Some courageous victims have testified
in court that they were kept in illegal army torture camps, but the courts have
ignored their complaints. In such a case, Mr. Murad Khan Marri was missing for
eight months before the Frontier Corp (FC) announced that he had been arrested
in March 2010, while crossing the Afghan border into Pakistan. He was produced
before the chief justice of the High Court of Balochistan province on May 25,
2010. Mr. Marri told the court that he had been kept in different places of
detention and severely tortured since his actual arrest on June 27, 2009. The
judge did not even ask him why he was tortured and kept
incommunicado.6
The torture in custody by no means is treated
as the criminal offence on the part of the law enforcement agencies. The
impunity provided to law enforcement agencies by virtue of the absence of any
law criminalizing torture is continuing to fuel its use, even in private houses.
Every police station in Pakistan has a torture cell inside the police station
compound walls. Victims have also claimed that they have been detained in
private homes and tortured there by State-agents.
Torture in custody is
a serious problem affecting the rule of law in Pakistan. It is used as the most
common means to obtain confessional statements. Furthermore, there are no
effective mechanisms to ensure the protection of witnesses. This discourages
victims from making complaints and prosecutions from succeeding. While
international jurisprudence on the issue of torture has evolved to high
standards, the situation in Pakistan resembles the stone ages.
In
conclusion, the practice of torture in Pakistan can only be addressed if the
following urgent measures are taken. The failure by the Human Rights Council to
take action with regard to grave, endemic and chronic human rights challenges of
this nature, will lead to its being out of touch with the cultural, political,
social and democratic advances currently being witnessed around the world, and
consign it to the annals of history reserved for gross failures:
1. The
Human Rights Council must take all necessary steps to ensure that the government
of Pakistan withdraw all reservations made concerning the Convention Against
Torture and the International Covenant on Civil and Political Rights, ensuring
that these key instruments can be implemented in full.
2. The Government
of Pakistan must produce a domestic law against torture, criminalizing the act
and providing for: an independent and timely investigation system to receive
complaints of torture; the effective prosecution of those found to be
responsible; and adequate reparation for victims, in line with international law
and standards.
3. The Pakistan government must ensure immediate
inquiries into torture cells being run by the armed forces and in private houses
by the law-enforcement agencies, ensuring that these are closed immediately and
that all those found responsible are held accountable by trials in civilian
courts, in line with international law and standards concerning torture.
4. Witness protection must become a priority, with the view that it is
the state's responsibility to protect persons willing to tell the truth.
5. Law enforcement agencies must be given adequate training and
equipment to function without resorting to torture.
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Footnotes:
1. Please see further here: http://www.ahrchk.net/statements/mainfile.php/2008statements/1574/
2. Article 4 of the CAT reads: 1. Each State Party shall ensure that
all acts of torture are offences under its criminal law. The same shall apply to
an attempt to commit torture and to an act by any person which constitutes
complicity or participation in torture. 2. Each State Party shall make these
offences punishable by appropriate penalties which take into account their grave
nature.
3. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-137-2010
4. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-074-2010
5. http://www.humanrights.asia/news/urgent-appeals/AHRC-UAC-132-2010
6. http://www.humanrights.asia/news/ahrc-news/AHRC-STM-085-2010
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About the ALRC: The Asian Legal Resource Centre is an independent regional non-governmental organisation holding general consultative status with the Economic and Social Council of the United Nations. It is the sister organisation of the Asian Human Rights Commission. The Hong Kong-based group seeks to strengthen and encourage positive action on legal and human rights issues at the local and national levels throughout Asia.
