United Nations Convention against Torture (hereinafter referred to as the Convention) came into force on June 26, 1987 whereby the purpose was to effectively counter torture throughout the world. Pakistan signed the convention on April 17, 2008 and ratified it on June 23, 2010.
Basic Structure of the Convention:
Article 1 of the convention defines torture as intentional infliction of ‘severe’ pain, whether physical or mental, by a public official or at his instigation for the purposes of obtaining information or confession from the person tortured or a third person. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions. Though, the definition uses the term ‘severe’, the intensity has never been described to bring forth a clearer picture of the instances and techniques which should amount to incrimination of the public official.
Convention requires that the person who commits an act of torture shall be dealt with under the criminal law of the state and that the state shall take legislative, administrative and judicial measures to ensure that the violation does not occur. Prohibition being of peremptory nature, it continues to exist even in times of emergency and as such, the right is inviolable. State parties shall adopt measures to ensure the regulation of conduct of their officials and such other measures as may be necessary to prevent torture.
Extradition under the convention to a state willing to prosecute the offender, given the universal nature of the crime, is an option while prosecution is an obligation. A state cannot deny extradition while at the same time hold on to the offender without conducting the relevant inquiry and following the procedures provided for in the law of the land. Convention further calls for cooperation amongst states especially where a person accused is being tried. State possessing evidence shall not withhold it and provide it to the state where prosecution is taking place. However, due process shall be observed during the trial and that the threshold required under the law for criminal offences shall not stand diluted.
A state is under an obligation to prevent not only torture but also other cruel or inhuman or degrading treatment or punishment in cases where the severity does not amount to torture as a result of the act of public official or his instigation.
Evidence obtained through torture shall be inadmissible in the proceedings against the person from whom it was obtained but may be used as evidence against the authority that extracted it.
A state shall take measures to establish its jurisdiction over the crime when committed in any territory under its jurisdiction, on board a ship or an aircraft, when the alleged offender is its national, when the victim is its national, if the state deems it appropriate. Plus, no state party shall expel, return (“refouler”) or extradite a person to another State where there are substantial grounds for believing that he would be in danger of being subjected to torture.
A committee known as ‘Committee Against Torture’ has also been established which, inter alia, has the competence to receive communications from the individuals subject to a state who have been subjected to torture provided that domestic remedies stand exhausted and a State’s declaration vest the committee with the power to receive and act upon such communications.
At the time of ratification in 2010, Pakistan expressed reservations on Articles: 3, 4, 6, 8, 12, 13, 16, 20, 28(1) and 30(1) of the Convention. European Union had raised serious objections on these reservations and conveyed that these would make Pakistan ineligible for the GSP Plus status. Thereafter, a high level meeting was conducted under the leadership of the then Prime Minister Yousal Raza Gillani and it was decided that Pakistan would withdraw majority of the reservations it had made.
However, Pakistan has not withdrawn reservations on Articles: 8, 28 and 30. Text of the reservations is as follows:
‘The Government of the Islamic Republic of Pakistan declares that pursuant to Article 8, paragraph 2, of the Convention, it does not take this Convention as the legal basis for cooperation on extradition with other States Parties’.
‘In accordance with Article 28, paragraph 1, of the Convention, the Government of the Islamic Republic of Pakistan hereby declares that it does not recognize the competence of the Committee provided for in Article 20’.
‘The Government of the Islamic Republic of Pakistan does not consider itself bound by Article 30, Paragraph 1 of the Convention’.”
Article 30 (1) states that:
“A State Party may denounce this Convention by written notification to the Secretary-General of the United Nations. Denunciation becomes effective one year after the date of receipt of- the notification by the Secretary-General.”
Enabling legislation, in this regard, has been proposed by PPP Senator Farhatullah Babar which has been adopted by the Senate’s Standing Committee in January, 2015. It is pertinent to note that it is the responsibility of the federal government to incorporate its international commitments in the domestic law by virtue of items number 3 and 32 of the federal legislative list.