Constitution or no Constitution?…Anwar Mansoor Khan
THE Constitution of the Islamic Republic of Pakistan, 1973, makes Pakistan a democratic state. It is categorically provided in the Constitution, that “Wherein sovereignty over the entire universe belongs to Almighty Allah alone and the authority which He has delegated to the State of Pakistan, through its people for being exercised within the limits prescribed by Him is a sacred trust”.
It further provides, that the power and authority of the state shall be exercised through the chosen representatives of the people where “the principles of democracy, freedom, equality, tolerance, and social justice as enunciated by Islam shall be fully observed”.
Pakistan has become a playground for the police and other law-enforcement agencies who act with impunity in violating the fundamental rights of the people as prescribed by the Constitution. Torturing citizens has become the order of the day and is accepted as an inevitable part by the law enforcement in Pakistan.
Our Constitution prohibits torture and ensures the elimination of all forms of exploitation. It safeguards individuals by giving them protection of the law. “No action detrimental to the life, liberty, body, reputation, or property of any person shall be taken except in accordance with law.”
An arrested person cannot be “detained in custody without being informed … of the grounds of arrest, nor shall he be denied the right to consult and be defended by a legal practitioner of his choice”.
Fundamental rights enshrined in Articles 9 to 25 are the bedrock, wherein any law contrary to them shall be void. The dignity of citizens, torture and the privacy of home is of prime importance and is inviolable.
Law-enforcement agencies act with impunity in violating the fundamental rights of people.
Pakistan ratified the Convention Against Torture (CAT) on June 23, 2010. In 2017, Pakistan gave its Initial Report on the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment for Punishment. In the Initial Report, Pakistan did not agree to the competence of the committee or the International Court of Justice to decide matters of violation under the convention.
The report admitted the above facts, stating that all legal frameworks in Pakistan criminalise and prohibit torture committed by anyone whether at the public or private level.
The report categorically speaks of policy that does not allow or condone the use of torture as a tool of the state’s law-enforcement agencies, and urges that torture is neither encouraged nor justified even under exceptional circumstances, despite serious ongoing security threats due to terrorism.
In April 2017, the Initial Report was taken up by the CAT. Pakistan was severely criticised for not proceeding in the manner as required under the convention, especially Article 1, which defines ‘torture’, and Article 4, which provides that the state shall ensure elimination of torture, and that offences under its criminal laws shall be acted upon. The report further highlights the non-implementation and lack of special laws for the purposes of criminalising torture in Pakistan’s domestic laws.
Pertinently in 2016, the European Commission’s report on GSP-Plus for 2014-2015 observed that though Pakistan had ratified CAT in 2010, the practice of torture, cruelty, degrading treatment and punishment persisted in the country.
In April 2017, the CAT committee concluded that Pakistan should take the necessary measures to legislate on the specific definition of ‘torture’ contained in Article 1 of the convention and establish penalties that are commensurate with the gravity of the act of torture. In July 2017, following the review of Pakistan’s human rights, the International Covenant on Civil and Political Rights required amendments to laws regarding the crime of torture, ill treatment, coerced confessions and the training of judges, prosecutors, police, the military and security forces.
Similarly, in 2018-2020, in the GSP-Plus reports from 2016-2019, the European Commission echoed concerns and reiterated the recommendations of the CAT committee, while in 2020, the European Commission categorically stated that Pakistan’s legislation fell short of legally defining ‘torture’ and that the country had failed to criminalise torture as required under the CAT. A draft Torture and Custodial Death Bill, 2019, was presented in the Senate, which remains pending.
The Constitution provides for the protection of law and the elimination of all forms of exploitation. No action detrimental to life, liberty, body, reputation or property of any person can be taken except in accordance with the law. Fundamental rights of persons provide for a fair trial as enshrined in Article 10A.
Unfortunately, none of the fundamental rights of citizens are ensured by the state, or the enforcers of the law. Where is the dignity of man and the privacy of home, which is inviolable, and why is torture the norm for extracting evidence? Why is the freedom of movement, or peaceful assembly being restricted? Isn’t this subversion of the Constitution?
My question will always be this: isn’t it contrary to the Constitution when people are taken into custody without being given rights provided by it, when they are removed from sight and held against their will without their location being disclosed, without legal recourse, without being allowed legal representation, without being referred to a court of law and without being given access to family members?
The Constitution is a sacred document, which is why Article 6 has been provided, wherein any person who abrogates or subverts or suspends or holds the document in abeyance by use or show of force, or by any other unconstitutional means, is guilty of high treason.
In the wake of the aforementioned provisions of the Constitution and international conventions I leave it to the people of Pakistan to determine for themselves, whether there is a Constitution and if so, whether it has been violated, subverted or been suspended or held in abeyance.
The writer is a senior advocate of the Supreme Court of Pakistan.
Courtesy Dawn, November 6th, 2023