Asian Human Rights Commission
Protests against the use of torture by law enforcement agencies are becoming more widespread in countries throughout Asia. These are emanating from a growing popular sentiment against torture as an abuse of power. With greater awareness and a sense of their own dignity, people are openly opposing abuse by law enforcement officers, who are also only human beings like themselves. The question being asked constantly is what gives one group of people the authority to torture others?
Governments in Asia who underestimate this popular sentiment against the use of torture are likely to face serious problems in the near future. These governments can offer no justification for torture except that it is the only method of criminal investigation known to the police. Some governments lament that they are unable to afford qualified criminal investigators. Others are not willing to spend money and time to build modern facilities and institutions that will make the use of torture redundant. However, these excuses no longer pacify public outrage against the barbaric abuse of human bodies and minds by persons in uniforms who represent the state.
The poor criminal investigation methods and facilities in a large number of Asian countries mean that the police routinely assault individuals after failing to find the real culprits of crimes. These innocent persons are then substituted for the accused. Human rights activists in Bangladesh state that about 70 per cent of cases filed in court involve innocent civilians who have been accused of crimes where the police have either allowed the perpetrators to escape or were unable to catch them. It is common knowledge there that the actual criminals are often allowed to escape after bribing the police. If complaints are made to higher authorities about the abuses of lower-ranking officers, these are closed through the payment of bribes. Similar practices occur in countries where the rule of law has all but completely collapsed, including Cambodia, Nepal and Burma. In other countries where the overall situation is less severe, such as Thailand, evidence suggests that torture is still used routinely.
Thailand: Growing repugnance of barbaric torture
In Thailand the police use electric shocks on victims’ genitals in ordinary criminal cases. Writing to Suwat Liptapanlop, the Minister of Justice of Thailand on June 22, the Asian Human Rights Commission observed, “The question may well be asked as to why Thai police enjoy electrocuting testicles?” The remark was made after the May 24 gruesome torture of Urai Srineh, allegedly at the Chonburi provincial police station. Urai was electrocuted on his testicles for hours before being released. Doctors have said that he may suffer lasting damage. If he loses his ability to reproduce, the perpetrators could be charged with grievous bodily harm, and be sent to jail for up to ten years. However, none have yet been investigated or even identified. When Urai was in hospital a deal was struck and money paid to close the matter.
Urai’s treatment is reminiscent of earlier genital torture cases in Thailand. These include the assault on Ekkawat Srimanta by officers attached to two police stations in Ayutthaya province during November 2004. Ekkawat was rushed to hospital by relatives with severe burns all over his testicles, penis and groin. His suffering was widely reported and excited public disgust. Similarly, in September 2004 officers of the Phra Nakhon Si Ayutthaya station allegedly electrocuted Anek Yingnuek by attaching live wires to a fork stuck in a bag of ice resting on his groin. Like other poor people in Thailand, Anek had anticipated that he would be beaten up during police interrogation, but had not imagined such sadistic methods. “It was really torture,” he said with disbelief later. Unfortunately for Anek, he was kept in detention under a system that allows the Thai police to hold an arrestee for up to 86 days before charges are laid, during which time evidence of his maltreatment was lost.
As a result of their cruelty the reputation of the Thai police is at an all time low. The silence that has long existed around their brutal and corrupt methods is being broken. As more and more reports of heinous torture in police stations are being discussed publicly, repugnance grows. As the practices of police in setting up uncounted numbers of extrajudicial killings are exposed, the reaction is getting stronger. As the extent of corruption that pervades the entire police force is laid bare, people are demanding action. Even some senior police officers admit in private that things are going badly wrong.
The previously unquestioned power of the Thai police is daily facing greater challenges. Some parts of the police force can be expected to take strong steps to defend their authority and enjoyment of illegal practices. In the case of prominent human rights lawyer Somchai Neelaphaijit, who had publicly implicated police in the torture of his clients, this meant forced disappearance. Most recently, police linked to the reported extrajudicial killing of a suspect in Nonthaburi province have sued prominent forensic pathologist Dr Porntip Rojanasunan after she questioned their conclusion that the death was a suicide. She earlier won a litigation case brought by other police after suggesting that a man who died in custody had been a victim of torture: including by having a burning plastic bottle applied to his testicles.
These reactions are symptomatic of a growing struggle for the power over criminal investigation and justice in Thailand. The question that people in Thailand are now asking is whether this power belongs to the police or the public–on whose behalf it should exercised through open and accountable civilian-run institutions, including the courts, branches of the bureaucracy, and independent agencies. As the questioning becomes louder, new ideas for change are being shaped and directed, and the historical dominance of the police is becoming increasingly untenable.
India: Failure of the justice system means impunity for torturers
Cruel treatment of detainees is standard practice in Indian police stations. In a recent case reported to the Asian Human Rights Commission from Kollam police station, Kerala, the arresting officer allegedly pounded the detainee at the police station along with five other police constables, killing him within hours of arrest. This police station, according to local people, has a designated room known as the “museum” where the officers keep instruments for torture.
There is little chance of a case being properly investigated or prosecuted and the torture perpetrators being brought to justice in India. Even if it is pursued and investigated, the system is unable to ensure that it is done properly. For example, there are not enough forensic facilities to provide an accurate report in reasonable time. The forensic facilities available in the state of West Bengal are beyond comprehension. Human bodies are left to rot and be eaten by stray dogs and rats on the floor, since the morgues do not have freezers. Morgue attendants and cleaners examine the bodies and make reports, which are signed by doctors who never even enter the autopsy rooms. These reports are often prepared according to the instructions of the police who bring the body to the morgue. So it is that the autopsy report of a person killed in custody is prepared under the instructions of the police who have perpetrated the crime, and also are the investigators of the case.
Although India has signed the UN Convention against Torture, it has failed to ratify it on the pretext that the existing domestic mechanisms in the country have enough built-in provisions to serve its purposes. However, the domestic mechanisms have not even served the purpose of a scarecrow. India therefore needs to ratify the convention at the earliest possible date.
Sri Lanka: As a sign of protest, let us stand by the victims of torture
A few years after the UN Convention against Torture was prepared, the Sri Lankan government ratified it and passed Act No. 22 of 1994 in parliament to introduce it into domestic law. However, for many years, this legislation remained dormant, and it is only now beginning to be enforced, albeit to a minimal degree. It has so far failed to prevent the widespread use of torture in the country.
In his address to the 61st session of the UN Commission on Human Rights, Lakshman Kadirgama, PC, Minister of Foreign Affairs, acknowledged the gravity of custodial torture allegations in Sri Lanka and condemned torture without any reservation:
“The government of Sri Lanka, taking serious note of recent allegations regarding torture while in police custody, has introduced short- and long-term preventive mechanisms to address the issue in line with the recommendations of treaty bodies. The government of Sri Lanka condemns torture without any reservation¡K Under domestic legislation, torture is considered a serious crime, which carries a minimum mandatory sentence of seven years rigorous imprisonment. The government looks forward to having a constructive dialogue with the Committee against Torture when Sri Lanka’s second periodic report is taken up for consideration.”
In light of these remarks, Sri Lankan citizens have the right to demand not only strict enforcement of existing legislation but also justice for torture victims. Recent studies have shown that torture victims suffer severe trauma, thus creating a mental disequilibrium. Their condition is often manifested in inconsistent behaviour: the inclination to refrain from making decisions or assuming responsibilities, inconsistency in language or statements, the apparent reluctance to do any work, complaints of physical aches and pains and distrust of institutions and people-all are associated with trauma resulting from torture. However, the gravity associated with the crime of torture has never been recognised by the state.
This failure on the part of the state also explains the modicum of compensation awarded to victims when the crime is established. Furthermore, no institutional arrangements exist to provide rehabilitation to victims, whether pecuniary assistance or psychological counselling. However, it is these commitments that will indicate to the actual or potential perpetrators of torture the gravity accorded to the crime by the state and its readiness to stand by the victims whose dignity has been violated.
The painfully low amounts of compensation paid to torture victims are a feature in many Asian countries. Payment of pathetic sums in compensation for torture is an affront to human dignity. Minimal compensation also encourages further torture and does little to enhance popular confidence in the courts. In fact, the damage done by torture cannot be measured in monetary terms. However, where financial compensation is awarded, it should reflect the gravity of the offence, serve as an apology from both state and society for allowing the offence to occur, and send a firm message that the practice must be stopped. Payment of small amounts of money in compensation for torture is also often accompanied by the settling of cases outside the courts, in order to save the perpetrators from punishment. The practice of compensation in lieu of punishment must also be condemned. When compromises are struck persons unworthy of wearing police uniforms are allowed to continue wearing them. Entire police forces are corrupted as a result.
The Sri Lankan society at large has either tacitly condoned torture or shunned the victims, who generally come from the lowest strata of society. An assumption still exists that the police are law-abiding and that torture victims deserve such treatment. It is time that such assumptions are challenged and rejected: torture is routinely inflicted on a large number of innocent people throughout Sri Lanka. Furthermore, Sri Lankan law does not allow for torture, whether as punishment or for the purpose of extracting a confession. Therefore, resistance to the widespread use of torture, even acknowledged by the state, must come from members of the community standing alongside torture victims. Gestures of solidarity, such as medical and financial support, providing security against threats by the perpetrators and counselling to the victims, can send the message that society is standing with the victims and against the perpetrators of this heinous crime.
Philippines: Torture practiced with impunity and without fear of prosecution
The 1987 Constitution of the Philippines prohibits torture. The country is also a party to the UN Convention against Torture. But the government’s failure to criminalise torture has shielded the police, military and other public officials from prosecution, thus creating an environment of impunity. Although the government’s law enforcement agencies have denied the practice of torture by their ranks, the reality in the country suggests otherwise.
In most cases, allegations of torture are not investigated. Where there are allegations of torture, the burden to prove this claim rests on the victim. Even if the victim intends to seek legal remedies for the violation of their rights and to prosecute the perpetrators, there is no law against torture. There is also no institution that will look after the needs of torture victims. Consequently, the victim is left isolated, persecuted and traumatised, and may be forced to face charges in court that are the result of a forced confession through torture.
There is a proposed law against torture pending in the Congress-House Bill 4307: Act Penalising the Commission of Acts of Torture and Other Purposes-that stipulates torture as a criminal offence. The bill contains a detailed proposal of how to address torture in terms of prevention, prosecution, rehabilitation and the indemnification of victims. The bill, however, has had difficulty passing into law. There is strong opposition from some government law enforcement agencies, public officials and even legislators regarding torture. Most of those who oppose the bill are critical of the captured insurgents, so-called suspected terrorists, political detainees, militants and others who are the victims of torture in most cases. Freedom from torture is perceived as more of a political issue rather than a basic human right.
Although ordinary Filipino citizens also experience torture, most of these cases are not investigated, brought into public discussion or reported to the Philippine Commission on Human Rights, relevant police officials, and the military ombudsman for investigation and sanctions. Society’s poor understanding and inability to articulate that freedom from torture is a basic right is the main reason that torture has not yet been considered a criminal offence in the Philippines.
Indonesia: Government unwilling to implement the UN Convention against Torture
It has been almost seven years since Indonesia ratified the UN Convention against Torture and introduced the corresponding domestic legislation, Law No. 5 of 1998. Still to date there have been no adequate measures to prevent and criminalise acts of torture and to make them punishable by appropriate penalties. None of the norms of convention have been adopted into the domestic law, and nor is there any way for people to lodge complaints about violations. Although torture is among the elements constituting crimes against humanity under Law No. 26 of 2000 in the Human Rights Court Act, there is no procedure for acts of torture to be brought before a court as the Penal Code does not have any specific provision on torture. At present, torture is treated legally in the same way as an act of abuse between one private citizen and another, which is contrary to the principles of the UN convention.
With the new bill for the Truth and Reconciliation Commission, Law No. 27 of 2004, victims of torture will be even less likely to be able to obtain justice than at present. The proposed legislation does not provide them with the right to reparations. Article 27 states that the victims of gross violations of human rights, including torture, will have the right to reparations only if the perpetrator gets amnesty. The bill also gives the commission the authority to recommend amnesty for perpetrators of gross violations of human rights, including torture. In addition, the Indonesian government has refused to cooperate in any judicial process involving torture cases in the Special Panel for East Timor in Dili. The government, together with the government of East Timor, has shielded the perpetrators of torture by establishing the Commission of Truth and Friendship there.
The need to eliminate torture in Asia
In recognition of the International Day in Support for Victims of Torture, 26 June 2005, the Asian Human Rights Commission hopes that governments of Asia will heed popular demand to eliminate torture. To do this, torture needs to be recognised as a crime in every country and competent and independent investigators need to be appointed to redress all complaints. Those governments that have ratified the UN Convention against Torture without implementing it in domestic law are facing growing criticism from home and abroad. But judicial and legal agencies must also be held to account for their inability or unwillingness to adopt modern jurisprudence on torture.
The Asian Human Rights Commission salutes all those groups and individuals throughout Asia who are speaking out against torture. Their effort will help to bring in a new era of respect for human dignity. The rising popular sentiment against torture is an important development in establishing more vibrant democracies throughout Asia. The effect of this movement must be to completely eradicate torture in the region, thereby securing lasting freedom and dignity for future generations.