Written by, Mohsin Sheikh;
Unfortunately, Pakistani law enforcement agencies have become ‘illustrious’ for custodial torture at both national and international forums. Despite, Pakistan has signed UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT) in April 2008 and ratified it in June 2010. Apparently, until today no piece of legislation has been passed by Pakistani Parliament criminalizing custodial torture. However, Senator Sherry Rehman has proposed a bill- Torture, Custodial Death and Custodial Rape (Prevention and Punishment) 2019 which has been under consideration for quite some time now. This very proposed piece of legislation shall define various permutations of this crime and bring domestic law in conformity with the UNCAT.
Meanwhile, Pakistan has few provisions prohibiting custodial torture for extracting evidence/ forced confessions. For instance, Article 13(b) of the Constitution of Islamic Republic of Pakistan states, “No person shall, when accused of an offence, be compelled to be a witness against himself.” Similarly, Article 14 of the Constitution states, “1) The Dignity of Man and subject to law, the privacy of home, shall be inviolable. 2) No person shall be subjected to torture for the purpose of extracting evidence.” Also, in Section 163, Code of Criminal Procedure 1898, that no police officer or other person in authority shall offer or make, or cause to be offered or made, any such inducement, threat or promise. It somewhat also prohibits beating and confinement. Also, custodial torture is prohibited in Article 156(d) of Police Order 2002 with a penalty of imprisonment up to five years and with fine.
Firstly, we need to define torture from other interrogation techniques to enhance investigation as per contemporary interrogation measures. Torture is defined as, “an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession… for any reason based on discrimination of any kind…It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.”- UNCAT. Torture defined in the proposed bill- Torture, Custodial Death and Custodial Rape (Prevention and Punishment) 2019 as, “an act committed by any public servant…with specific intent to inflict physical or mental pain or suffering… upon another person taken or held in custody for the purpose of: a) Obtaining from that person… any information or a confession; or b) Punishing that person for any act he… has committed or is suspected of having committed; or c) Intimidating or coercing that person…; or d) For any other reason based on discrimination of any kind; or e) Harassing, molesting or causing harm…to a female for any of the above purposes.
But today, some enhanced interrogation techniques used by law enforcement agencies in developed countries have proven to be very effective. However, obviously time plays a significant role. If the situation is time ticking emergency, then LEAs may resort to torture or even kill one of the suspects, for instance, interrogating terrorists for identifying bomb location. This follows the principle of person not giving statement versus the larger interest of society. It should be used as last resort. Anyhow, there are several interrogation techniques which do not come under the umbrella of torture such as ‘suggestibility’ where an interrogator suggests the suspects possible mechanisms in which a crime may be committed. ‘Deception’ where an interrogator lies or gives misleading statements or may claim that we have sufficient evidence against suspect may result in confession.
Similarly, ‘Reid’s Technique’ has turned out to be very effective in getting confessional statement. By using this technique an interrogator directly confronts the suspect and threaten him/her of no chance of escape, police have sufficient evidence and police may move around in the room to make him/her uncomfortable by invading his personal space. In addition, an interrogator may create ‘dominance’ onto the suspect and does not let him speak for a while. Also, ‘deflection’ may be used to confuse suspect about the manner of a particular crime. It could result in correction by the suspect and thus leading into a confessional statement. Furthermore, by ‘turning objections into justifications’ and expressing some sort of empathy may also result in confessional statement. Another technique that most of us have seen in movies/shows is ‘Good-Cop/Bad-Cop. It too helps and works sometimes among other tactics.
To recapitulate, Pakistani LEAs have to switch conventional interrogation techniques (torture, beating, etc.) into contemporary interrogation techniques to avoid fundamental human rights abuses. The article somewhat describes few contemporary enhanced interrogation techniques which need to be adopted right away. Deprivation of sleep, deprivation of food and drinks, sensory deprivation, incentive approach of interrogation, shamming, fear up approaches, using detainee’s phobia, threaten murder/rape, restraining in painful stress positions, mock execution, etc. are all contemporary interrogation techniques which do not fall under the ambit of torture. Similarly, I’d request heads of different LEAs to train their IOs with latest investigation and interrogation techniques for effective and immediate dispensation of justice. Similarly, there must be workshops and seminars for tactics learning which definitely shall not only enhance the performance of LEAs but also its image.
The author is a lawyer, human rights activist, Principal Blackstone School of Law and adjunct faculty member of University of the Punjab.