|Professor Michael Davis, Faculty of Law, Chinese University of Hong Kong
Asia is the only part of the world without any regional human rights institutions, and when I read this report I was struck by that. Anyone who studies regional institutions knows that they tend to have a bit more progress than the international ones, notably in Europe, but increasingly in the Americas and Africa. I noted the role of the UN Human Rights Committee in some of these cases. I appreciate its role, but we know that it can criticise and that is about the limit of its function. There is little follow-up, and it is difficult to get implementation of what it suggests. So in the end it all returns to the political process, and anyone involved in human rights work knows that to have influence politically involves good use of information and publicity. I really appreciate this report for that reason.
So for that person at the bottom, the chance to have somewhere to go and complain and have one’s voice heard is often greatest at the national and regional level. Now we know the weaknesses at the national level, and those are identified in this report, but there is no place to turn at the regional level, and I think we should try to emphasise that in Asia we need a regional human rights treaty more and more. Of course, a regional institution wouldn’t be a panacea, but would it be a good thing? I say yes. I feel a sense when I travel around the region that human rights problems are discussed in isolation. So I appreciate the need for comparisons, but we need more than this. We need something within which we can work on human rights problems at the regional level.
Unfortunately, the absence of regional dialogue means that we don’t talk about these issues. I hope this report will overcome some of that silence; I hope it doesn’t disappear into the flutter of international news. So can we start talking to each other about it? I don’t think there is a country in Asia for which this discussion wouldn’t be important.
On another point, there is a model for dealing with police abuse that is especially common in the Commonwealth where you have complaints commissions and other avenues for complaints against the police, but there are always debates about whether these institutions are independent, whether they can investigate properly or not. A supplement to these could be better rules of evidence, excluding evidence obtained by torture. We know from this report that judges aren’t paying enough attention to complaints of abuse, and this is another part of the problem that requires our attention, not just investigating police.
Law Yuk-kai, Director, Hong Kong Human Rights Monitor
Compared to the situation in Sri Lanka, the situation in Hong Kong is much better, but there are still areas where we can learn from each other. The recommendations in the report are particularly useful for Hong Kong, such as on how to prevent impunity. In the past we have had a number of serious cases in police stations for which to this day we have not had any satisfactory answers and nobody has been brought to justice. So this brings home to us the importance of independent monitoring of police, in particular, the power to investigate them. Interestingly, in Hong Kong the Ombudsman has the power to investigate the police only to the extent that they fail to comply where access to information is concerned, and in the meantime the government is doing its best to shelter them. That is very sad, because if the problem is not serious, why protect a few ‘bad apples’? On the other hand, if the problem is widespread, then we do indeed need some system to bring it under control, yet currently we have no independent investigating body.
Another issue is how to ensure that there is no political control of the police force. Recently in Hong Kong we have witnessed signs of the possible politicising of the police. These are coming from various directions, including changes in laws, and changing methods of policing. For instance, police have gone to apartment buildings with questionnaires about Falun Gong demonstrators: ‘Do they block your way?’ ‘Are they a nuisance?’ In the past, these kinds of questionnaires were only used in serious crimes like murder, never with regards to demonstrations or similar events. There are also recent cases on the use of serious force by the police in dealing with demonstrators, and the courts have recognised that there are certain problems with the police response to ‘politically troubling’ behaviour. So if we do not properly control our police force, it may well become a political tool.
We also understand the importance of having a national human rights institution or equivalent body, but unfortunately in Hong Kong we don’t have any such agency at this time. I understand the government has certain views towards this, and may hold further consultations, but to this time it has been resistant to calls for the establishment of such a body.
Likewise, we see the importance in holding officers in charge of police stations accountable for the protection of detainees, and in Hong Kong theoretically these are the duty officers. However, I think there should be further reform of our laws to ensure that there is a special statutory obligation for these duty officers to protect persons in their custody. In particular, this means bringing officers who have been accused of torture before the courts. While the Convention against Torture aims to make torture a universal offence, in Hong Kong police who have clearly inflicted physical and mental pain upon detainees have not been charged with torture. Under our Crimes (Torture) Ordinance, torture is an offence punishable with life imprisonment. Yet, although there are officers against whom clear evidence of acts amounting to torture has been presented, the government has not charged them with torture. So far the Crimes (Torture) Ordinance has never been used. It leads me to think that both Sri Lanka and Hong Kong need to consider ways to ensure that prosecution is fairly conducted, and that the laws prohibiting torture are used when they are really necessary, not just lying there like window-dressing. So we hope that we can learn from each other.
Basil Fernando, Executive Director, Asian Human Rights Commission
This is not just a report about torture. It is about the collapse of a policing system. Why did we choose to publish stories rather than statistics? To show that torture in Sri Lanka is not the result of a political or military crisis where it is being used to extract information. Go through these stories and ask, ‘What was the purpose of torture in these cases?’ What is the point of torturing someone accused of petty theft? We are trying to make a point that in these cases the purpose of torture was not to extract information, but to find a substitute for the guilty party. So there is a complete breakdown in investigations. This is a point of great relevance for virtually all of Asia, and it is a very deep point for the global human rights movement: if the institutional framework breaks down, how can the International Covenant on Civil and Political Rights be enforced? Without a functioning judiciary in a country, how can we talk about regional bodies? This came up in Europe and other parts of the world: when a basic structure exists, you can build on it. When there is not even a basic structure, then the investigation system will fail completely.
If in Hong Kong we are now seeing signs of politicising of the police, then lessons should be learnt from Sri Lanka, where what has happened to the policing system is a direct consequence of political control. The politicians were able to tell the police what to do. Little by little, police escaped responsibility for their actions. Hierarchy was no longer respected. People at the bottom became more powerful and independent. By and by, the rule of law ceased to exist.
Let’s take another case: Thailand. Everybody spoke of Thailand in recent years as a relatively better scenario, but last year in Thailand over 2000 people were killed in an anti-drug trafficking campaign, many of whom apparently had nothing to do with drug trafficking. And that is the government statistic. We also produced a report on this issue (article 2, vol. 2, no. 3, June 2003). What it discussed is that all this happened simply on orders of the prime minister. So you remove safeguards, the police do what they want, and people with power exploit the situation. As a result, most recently a leading lawyer has been disappeared by the police, and the details emerging are that he had a lot of evidence of torture being committed in the south of the country.
So the question is, can we continue with a discussion about human rights in Asia purely at a generalised level, without touching on the absence of the rule of law? Or will we allow the new authoritarianism to take control, where instead of overtly suppressing the rights of people, you remove a few judges, replace them with the ones you want, then the judges don’t give redress. You put some people in the police at positions you want them, so that they will not do their jobs, and in the end you rule happily. This is the central issue for the whole of Asia.
Pressure alone is not enough. We need to develop a discussion around issues of jurisprudence. When torture is not a crime, how far can we take a case? How—not in the west, but in our countries—can we develop the jurisprudence to deal with this? You can write a constitution and put anything you like into it, but what does it matter? In Cambodia, according to the constitution, all of the United Nations conventions are automatically part of the law. But what rights do any Cambodians have? Their situation is a thousand times worse than Sri Lanka. So they have a constitution, but what is its use?
The human rights movement in Asia is not debating these issues, despite years of activity. If the overall structural problems are not addressed, nothing happens in the end. In Sri Lanka now there is a National Police Commission, the purpose of which is to remove political control of the police. But it is not easy for this body to simply enter into the situation and say do this or do that without wider discussion. But our talk on human rights does not come to that level, and that is the point this report is trying to make.
Sri Lanka has ratified all necessary international instruments, and the UN Human Rights Committee, Working Group on disappearances, the Commission on Human Rights—in a special resolution—have all made lists of recommendations, but nothing has been done. That is where we come back to the title of this journal: article 2—effective implementation of these standards. And if we don’t take it upon ourselves to raise these issues, there is no one else who will do it now. We have to pose questions and work towards a response.
This is also all about the level of fear in a society. In Cambodia, human rights groups will say that the level of torture is relatively low right now. Why? Because anybody who is arrested will immediately sign a confession, such is the level of fear. Nobody will resist. If the police say, ‘You killed a man’, the reply is, ‘Yes, I killed a man’. But in Sri Lanka, an innocent person will still at first protest, so they have to have an admission beaten out of them. That is why it is especially common that it is innocent people who are tortured. Because initially they will say, ‘I did nothing, why did you bring me here?’ And only after they have been tortured will they look for some way out, and say, for instance, ‘Yes, I have a stolen watch at home’, but when they go with the police to find it, there is nothing, so again they are beaten. So we have to consider the level of fear in society, and what creates that fear.
We also have to make our discussions meaningful for the ordinary person. Let us suppose we are now talking with a torture victim. What do our discussions about human rights standards and conventions have to do with that person? At the end,At the end, will we just say, ‘I can do nothing for you’? Should we not go beyond that point?
This is the edited text of remarks made at the launch of the second special report on torture in Sri Lanka published in article 2, ‘Endemic torture and the collapse of policing in Sri Lanka’ (vol. 3, no. 1, February 2004), on 26 March 2004.