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Basil Fernando
(A presentation for the International Seminar on Freedom from Torture
– Challenges we face for the rehabilitation and prevention on the occasion on
the 25th anniversary of the Rehabilitation and Research Centre for Torture
Victims (RCT), October 30, 2007)
May I first of all congratulate the Rehabilitation and Research Centre for
Torture Victims (RCT), which has completed 25 years of service in one of the
fields which is so central to the preservation of human freedom and human
dignity, which is the eradication of torture.
Those who have pioneered this project have introduced to the world a
discourse that is central to the understanding of the challenges faced in
promoting human freedoms and the protection and promotion of the basic norms and
standards required for any kind of decent life in human society. Today this
effort has generated a global discourse and from every corner of the world
people are participating in this discourse. All governments have been challenged
on this issue and no international discourse on human rights, democracy and the
rule of law is now considered worthwhile if it does not take into consideration
the issues relating to dealing with torture. It can therefore be safely said
that the work these pioneers have started and the many others who have devoted
their time and effort to it, have had an impact that is relevant to human kind
throughout the globe.
I come from Asia and my organisation works in countries throughout south
Asia, south East Asia and East Asia and I am aware that the discourse relating
to torture has taken root in all these countries. This does not mean that all
the issues that need to be resolved relating to this matter have been dealt
with, with adequate success in all these countries. It only means that the
discourse on these issues is quite a prominent part of the debate on human
rights, democracy and rule of law in all these countries. (This paper is based
on data collected by the Asian Human Rights Commission since 1995 on several
countries in Asia relating to the implementation of human rights with specific
emphasis on the elimination of torture. This data can be found in the AHRC
websites).
What I will try to do is present some of the unresolved problems relating to
these issues both in the field of the prevention of torture and also the
rehabilitation of victims of torture within the context of Asia, and the
relevance of these issues to the global discussion on torture and human rights
in general.
1. Gaps in understanding between the developed world and
others
It can be said that adequate work has been done in the region in spreading
the ideas that have been universally accepted relating to torture prevention and
rehabilitation. While there can at no stage be a complete success in the
creation of awareness of these issues, it can be said that a huge amount of work
has been done by many actors to create awareness of the issues in our part of
the world. However, between awareness and actual realisation there are vast
gaps. It is these gaps and the causes that create these gaps that need to be
understood to achieve further progress in this endeavor.
It is in this area of understanding that there are very serious limitations
and these limitations themselves are based on certain historical experiences
which different peoples of the globe have had on these matters. One of those
experiences is the extent of the development of the nation state and the
institutions of rule of law as the foundation of the institutions of the state.
In what we now call the developed world there is a long history of internal
struggles to establish law as the basis of organisation of society. That no one
is above the law has been factually recognised through the development of laws
themselves and institutions to implement such laws with adequate effectiveness.
I do not imply that perfection on this issue has been achieved anywhere.
However, the recognition of law as the basic framework of society and having
institutions that are capable of adequate implementation is the advantage that
people in some countries have already achieved in the historical sense. Even in
great crises such as the world wars, these countries have been able to preserve
their institutions and where there had been a disruption to recover quite fast
as the traditions of basic rule of law had already become a part of their legal
and political heritage.
This same cannot be said of many other countries and that is not necessarily
due to the fault of these countries, their cultures or the mentalities of the
people. The fact is that the world has had an uneven development and that the
advantages acquired by some also had the impact of creating disadvantages for
others. My purpose here is not to go into the causes of the differences between
that part of the world where rule of law basis has already been established
adequately and the other part of the world where it has not been established to
any degree of adequate success. The fact is that such a difference exists and
the need is to understand the implications of these differences to the peoples
of the countries where this development has not happened adequately.
2. Where torture is endemic
Relating to the topic we are discussing which is torture, the direct
implication of this differentiation judging from the experience of Asia is that
torture still remains an endemic practice within the institutional framework of
social controls and governance in most countries. I believe that the
understanding of a problem as endemic and rooted in the institutions as
different to exceptional or occasional instances of violations and certain
limitations of institutions, which are in many ways adequately developed. It is
very different and this difference needs to be addressed if practical
achievements are to be made in resolving these problems.
The experiences of the work done by the Asian Human Rights Commission in
several of the countries in Asia indicates very clearly that the prevalence of
torture is due to the nature of the institutions of the administration of
justice and political control. What this means is that it is not some bad
policeman that tortures people but it is bad policing systems that make the
practice of torture a necessary part of policing. To put it even more plainly
the concept of policing itself is inseparable from the idea of using torture in
the work of policing. Our work clearly confirms that the many former as well as
present officers in the policing departments very frankly admit the fact of the
constant use of torture in their work. While some regret having to use such
methods others categorically state that it is an approved method practiced in
policing despite of whatever claims that may be made in official pronouncements
by the state or by some of their own superior officers. It has also not been a
rare experience for us to have had such admissions from officers holding high
rank within the policing departments of many of these countries.
(Kindly see the attached list of publications from several countries for
demonstration of this problem).
Related to the problems within the policing system are the problems of the
prosecution and judicial institutions. As long as torture remains endemic within
the policing systems it is not possible to eradicate the prevalence of the deep
seated attitudes regarding the tolerance of torture within the prosecution and
judicial branches of the administration of justice. While there are more
pronouncements on the part of these two branches of adherence to international
norms and standards relating to the issue in actual practice there is a manifest
resignation about the widespread use of torture. We have also noticed that the
prosecution and judicial branches are often afraid to enforce the prohibition of
torture strictly due to apprehension that this may seriously affect the work of
policing in the respective countries. The attitude, it appears to us, seems to
be that the prohibition against torture is being treated as unrealistic.
In the global discourse on the eradication of torture and proliferation of
universal human rights adequate attention has not yet been paid to the
institutional issues mentioned above. In our work we have devoted a great deal
of time and effort to demonstrate this issue with examples from many countries
in the region. We have charaterised it as one of dysfunctional institutions
meaning that these institutions often produce the opposite of what they are
supposed to produce within the framework of the rule of law. We have documented
in detail serious setbacks on the rule of law sometimes amounting to a complete
collapse due to dysfunctional institutional mechanisms of the administration of
justice.
3. Misplaced efforts:
a. National
Institutions
A lack of understanding of these issues in the global discourse often leads
the more developed countries to undertake efforts for the promotion of the
prohibition of torture by pursuing certain activities which are inadequate or
even irrelevant to address the institutional issues mentioned above. One such
effort on which a lot of resources, financial and otherwise have been devoted by
developed countries is the promotion of those institutions called the national
institutions. In many countries in Asia these are known as national human rights
commissions. These commissions are expected to be based on the Paris Principles
of National Institutions. However, where the basic framework of the
administration of justice is dysfunctional these human rights commissions cannot
produce results of having a serious impact in altering the practice of torture.
National institutions are based on the conception of the ombudsman which
developed in Europe. In Europe the ombudsman can rely for his work on the
existence of strong institutions of the administration of justice. Suppose there
were fundamental flaws within policing, prosecution and judicial systems, can
the ombudsman institutions become a substitute for them? While this would be
considered an absurd proposition in the context of developed countries it is
this proposition that is promoted as a measure for dealing with torture and
other human rights issues for other countries. Experiences in Thailand, Nepal,
and Sri Lanka clearly demonstrate the negative impact of these institutions
despite of many efforts and resources devoted to promote these institutions by
many actors in the developed countries.
This brings up the issue of undertaking projects with good intentions but
without proper understanding. Such efforts can at times become
counterproductive. The emphasis on national institutions was one such instance.
Several of the states in Asia made use of the existence of national human rights
commissions as an evidence of efforts that they had undertaken to improve the
human rights situation in their countries. However, what in fact happened by
drawing attention to human rights commissions was to draw the attention away
from the problems that existed in the policing, prosecution and judicial
institutions. Meanwhile, enormous pressure was exercised on these commissions to
obstruct them from doing even the minimum that they might have done by various
means. This included the appointment of persons as commissioners who did not
have the capacity and often even the interest of the pursuit of the protection
and promotion of human rights. Added to this were the controls on resources.
Further, whenever these institutions encountered serious problems to their own
security from police or military sources they hardly ever received adequate
protection from the state to carry out their work. It is commonly said that
these national institutions were used as international show pieces. Had an
adequate understanding of the existing obstacles in the justice systems of the
countries been taken as the basis for evolving strategies for assisting state
parties to improve the human rights situation the problems now manifest in the
national institutions could have been foreseen and avoided.
b. Human rights education for the police without
structural reforms
One of the projects on which much resource has been spent is the human
rights education of the police. UN conventions on human rights and even the
Convention against Torture and other Cruel and Inhuman Treatment are often
taught to the police by workshops and other forms of education. Such projects
have been going on for a long time.
This education has not helped to alter the behaviour of the police and
in fact, it was not even possible to expect that such a change could have taken
place. When practical policing is done through structures within which torture
remains a valid working principle, mere human rights education does not have the
possibility of achieving the desired ends.
Many who have engaged in such educational efforts as well as human
rights groups who have been observing such efforts have found that the
usefulness of such education is very limited. Even the most sincere ones in the
police who participate in these educational exercises have often expressed the
opinion that unless there are serious structural changes they are unable to put
into effect what they have learned.
If human rights education is to be effectively used for the eradication
of the use of torture by the police it needs to be accompanied by serious
efforts to study the causes for the use of torture in the context of the
particular countries and the promotion of efforts to seriously reform the
policing systems. Research on police reforms to gain and disseminate a greater
understanding of these problems and projects to assist in such reforms can go a
long way to create the type of human rights education that is needed for the
effective eradication of torture.
c. Rehabilitation efforts not accompanied with
addressing the causes of torture:
Dealing with the rehabilitation of torture victims in countries where
torture remains endemic is different to rehabilitation efforts of refugees who
come to developed countries that may also be victims of torture. The numbers of
such persons are few for each country. Besides they are now placed in a secure
environment far away from the perpetrators of their torture and the situations
in which the torture took place. However, in countries where torture is endemic
the numbers of victims are very large and new victims are added each day. The
victims also live in the same circumstances in which they faced torture. The
state which allows the use of torture directly or indirectly is also very
unlikely to allocate adequate resources for dealing with the rehabilitation of
torture victims. Besides this, the doctors and psychologists who live within the
milieu of a country where torture is used as a normal practice are unlikely to
have the mental preparedness to undertake strenuous efforts for the
rehabilitation of victims, except in exceptional cases where some dedicated
persons devote themselves entirely to such efforts. As well as this, most of the
victims who are selected for harsh treatment by the police also belong to the
poorer sections of society. They live in extreme economic hardship. They also
see many other forms of serious victimization of the people who surround them
and therefore often treat their own experience of torture as part of the normal
conditions of the life of the poor. Immediately after torture they may make some
effort to obtain medical treatment. However, due to having to make a living on a
day to day basis, it is often difficult to motivate them to undertake
physiotherapy and trauma treatment over a long period of time.
The development of effective rehabilitation methods in these countries
needs to be accompanied with attempts to support structural reforms that will
reduce or eradiate altogether the use of torture. Meanwhile, rehabilitation
efforts at medical and psychological levels must also take into consideration
some forms of economic assistance to the victims during such periods.
4. Causes for torture in some countries of the
region:
a. Recognition of torture as a valid method of social and
political control
Various forms of inequalities that exist within the different countries
have given rise to the legitimating of torture as a mode of social and political
control. Torture is often used to maintain a climate of fear and to sustain low
expectations among the poorer classes of society who are in fact the majority of
the population in most Asian countries. Within such a situation the police and
military are often used, not merely to maintain law and order, but also to
prevent greater participation of people in social and political life.
In countries where there are various forms of social exclusion torture
is also used to maintain the lines that divide the social groups and to maintain
discrimination. For example in India where caste discrimination is an integral
part of the social organisation the lower strata of the system, the Dalits, who
were earlier called untouchables, are constantly subjected to torture and cruel
and inhuman treatment. In a celebrated novel The God of Small Things, Arundhati
Roy records how one of the heroes in the novel, a low caste person, was treated
by the Indian police. The following is an excerpt from that book:
"They heard the thud of wood on flesh. Boot on bone. On teeth. The muffled
grunt when a stomach is kicked in. The muted crunch of skull on cement. The
gurgle of blood on a man's breath when his lung is torn by the jagged end of a
broken rib. Blue-lipped and dinner-plate-eyed, they watched, mesmerized by
something that they sensed but didn't understand: the absence of caprice in what
the policemen did. The abyss where anger should have been; the sober, steady
brutality, the economy of it all."
b. Corruption
For the police to benefit from misuse of their powers for arrest and
investigations there needs to be a general impression in society that arrest is
almost always followed by torture. The presence of such an impression urges the
family members and others of the arrested persons to make efforts to influence
the police to not use torture. In this way the police may benefit from every
arrest they make whether such arrest is made for good or bad reasons. Besides
arrest, even a person who goes to the police to make a complaint under such
circumstances also has the same mental conditioning to treat the police with
gifts in order to get his complaint recorded and investigated. There are also
many reports of one party to a dispute being able to influence the police to use
torture against their rivals in the same manner. Thus, the use of torture helps
the police to maintain conditions which are conducive to corruption.
c. Impunity
The public perception that the police constantly use torture also
creates the fear among those who suffer adverse conditions due to bad police
practices in avoiding making complaints about the police. Even if some daring
persons make such complaints the use of torture or threats of the use of torture
can be used in order to persuade such persons or their families to abandon the
pursuit of their complaints. In the absence of complaints or due to the
withdrawal of complaints the police higher authorities can maintain that they
are unable to conduct investigations into torture even when local or
international groups make accusations of the prevalence of torture at police
stations. This same happens also in the cases of torture by the military. In
this way a climate of impunity can be maintained.
d. Pressure from higher authorities
Police officers often come under pressure from their higher authorities
or from political authorities to produce results regarding complaints of crime.
Often they are unable to produce such results either due to inefficient methods
of investigations or other reasons including bribes taken from the actual
culprits of the crime. Under these circumstances the police often arrest
innocent persons and in order to get them to confess to crimes they have not
committed they are tortured. The use of torture for this purpose is quite common
in several of the countries in which the AHRC has been monitoring. Often the
victims of such torture are from among the poorest. For this reason they are
unable to protest effectively either through lawyers or their family
connections. They are very likely to be convicted on the basis of such
confessions in which case the police also are rewarded for successfully
prosecuting a crime.
e. Fishing for information
There are a large number of cases that have come to the notice of the
AHRC from several countries in the region where persons have been arrested on
very slight suspicions and have been tortured severely with the view to fish for
information from them about alleged crimes. George Orwell talks about the
Burmese police of his time in his book, Burmese Days. In this book he talks
about the habit of treating suspicion as proof. This mental conditioning still
exists in many of the countries of the region. In such cases often, the extent
of the torture is very severe, particularly when the people are completely
unaware of such crimes. The officers believe that the suspected person is
probably withholding information and in order to break their stubbornness they
use greater force and also torture persons for longer periods of time.
f. Extracting information
This is a usual reason for the practice of torture in many parts of the
world and this also remains the same in the countries in which we have monitored
the situation. The alleged criminals are tortured with a view to obtaining
confessions. In some countries confessions are not admissible under any
circumstances. However, if some material object connected to the alleged crime
is discovered that part of the confession is admissible as evidence. In such
instances persons are tortured with the view to discover such objects which may
have been used for the commission of the crime.
g. Military purposes
In places where there are armed conflicts between some part of the
population and the military, torture is often used in order to discover
information that is useful for military purposes. Military intelligence services
often use such methods in order to identify others engaged directly or
indirectly in armed conflicts, those who are suspected to have information about
past or future attacks or those who are suspected to be having weapons and other
materials to be used for violent purposes.
5. Undermining the absolute prohibition of
torture:
Since 9/11 there have been strong attempts to undermine the absolute
prohibition of torture in the United States as well as in other developed
countries. This debate has now spread into a common discourse and common
questions are often asked about the validity of using torture in order to obtain
information to avoid terrorist attacks that may harm large numbers of persons.
Such questions are rhetorically used in order to slight the importance of
treating torture as a heinous crime and a barbaric practice.
This conversation has been successfully manipulated by regimes in the
Asian region in order to justify the use of torture which, in any way remains a
part of the local systems of social control and the administration of justice. A
question that is often posed is as to how “poorer states in underdeveloped
countries can be expected to do without torture when the developed countries
themselves are beginning to tolerate the use of torture increasingly.” Though
such arguments cannot be held as valid or legitimate, the influence of such
arguments as publicity stunts against the protection and promotion of human
rights should not be underestimated.
The reestablishment of the prevention of torture as an absolute
principle which should not be undermined for any reason at all in the developed
countries themselves will contribute greatly as a morale booster to human rights
organisations in the less developed countries.
6. Some suggestions for the future:
a. The promotion of contextual studies regarding the use of
torture in different countries. This is essential if we are to
gain a proper understanding about torture. The understanding based purely on
developed country experience cannot be a guide to achieving effective torture
prevention strategies in legal, social and political contexts which are so
completely different. This type of research requires the close collaboration of
developed country researchers with those of the particular countries in which
such research is done. What is meant here is not just the developed country
researchers getting some form of assistance from counterparts based in other
countries but actual collaboration in which developed country researchers can
question their own assumptions and come to grips with the type of problems in
countries which are so completely different to theirs.
This also raises problems relating to the purposes for which such research is
done. If one of the purposes is to contribute to reforms within the local
mechanisms for the prevention of torture this would require the type of
knowledge that can lead to such a purpose. It is quite normal and legitimate for
a developed country researcher to engage in research which may not have a direct
link to the type of reforms that are mentioned above. In such instances
distinctions must be made about different types of research.
b. Research on policing systems. Quite central
to the prevention of torture and the promotion of human rights in countries
outside the developed world is the understanding of the police systems in each
country. Much of torture prevention can only be achieved through effective
corrective measures accomplished through reforms of the policing systems.
This type of research requires close links to those who have direct
experience of such systems such as local lawyers, judges, policemen themselves
as well as citizens from these countries.
The greatest opportunities for effective measures for the eradication of
torture and the proliferation of universal human rights in my view lies in
studies that lead to a proper understanding of the policing systems.
c. Improving human rights discourse with greater emphasis on
providing a voice for those outside developed countries. The
global discourse on human rights is still predominantly one in which the voice
of the developed world is heard more strongly than the voices of those from
outside. The disadvantage of this as explained above is that the assumptions
that are based on developed country experiences are not appropriate to solve the
problems of the other countries. Proper articulation of the problems that need
to be resolved should take place with close cooperation of persons from
countries which suffer from these problems. When solutions do not fit the
problems there will not only be a waste of resources but also alienation among
the different participants in the human rights community itself. They may have
the same intentions but their understanding of the situation may be so different
that they may not be able to work together to address the more acute problems
regarding the prevention of torture as well as the promotion of human rights in
general.
d. Evolving of rehabilitation strategies that can address
the problems of affected countries. As explained above the
problems in the area of rehabilitation in terms of developed country
contributions and that of others suffer the same limitations as in the area of
prevention. Rehabilitation models which may well suit a developed country and
are even able to resolve problems of torture victims who arrive in those
countries may not work in the same manner in the countries of the victim’s
origin. In countries outside the developed ones besides physical and
psychological aspects, economic aspects also need to be addressed.
Conclusions:
The work done during the last 25 years has prepared the ground for making
greater achievements in the field of the prevention and rehabilitation of
torture victims as well as the protection and promotion of human rights. In the
coming 25 years in particular we may see far greater practical achievements in
this field, if on the basis of the knowledge gained during first 25 years we
make proper assessments and improve our strategies. In my view one of the areas
in which we need to improve significantly is the area of understanding of the
world outside the developed countries and the actual legal, social and political
context which creates the types of torture and abuse of human rights which are
taking place on a large scale in these countries. The primary need at the
present is to undertake the type of praxis that is needed to achieve such
understanding.
List of Publications:
Pakistan
Regarding Peoples’ power calling for reforms, published jointly by the Asian
Human Rights Commission and the Pakistan Bar Council (146 pages); you may also
find this book online at http://www.ahrchk.net/pub/mainfile.php/books/250/.
Indonesia
Regarding Impunity vs. the rule of law in Indonesia, Article 2 Vol. 5, No. 1.
http://www.article2.org/mainfile.php/0502/
Cambodia
For further information please see Dr. Lao Mong Hay, Former Head, Legal Unit,
Centre for Social Development, Cambodia – Institutions for the rule of law and
human rights in Cambodia, Article 2 Vol. 5, No. 1. http://www.article2.org/mainfile.php/0501/223/
Nepal
For further information please see Nepal – Impunity for abuses remains as
country undergoes political revolution. The State of Human Rights in Eleven
Asian Nations – 2006 pg. 130-178 and Special Report: The mathematics of
barbarity and zero rule of law in Nepal, Article 2 Vol. 3, No. 6 http://www.article2.org/mainfile.php/0306/.
Philippines
For further information please refer to Special Report – The criminal justice
system of the Philippines is rotten. http://www.article2.org/mainfile.php/0601/
Thailand
For further information please see: http://campaigns.ahrchk.net/somchai/
For further information please see: Special report: Extrajudicial killings
of alleged drug dealers in Thailand, Article 2, Vol. 2 No. 3, http://www.article2.org/mainfile.php/0203/
, Special Report: Rule of Law versus Rule of Lords in Thailand, Article 2 Vol. 4
No. 2, http://www.article2.org/mainfile.php/0402/,
Thailand: The return of the military & the defiance of common sense, Article
2 Vol. 5, No. 5, http://www.article2.org/mainfile.php/0505/
and Special Edition: Thailand’s struggle for constitutional survival, Article 2
Vol. 6 No. 3, http://www.article2.org/mainfile.php/0603/
The Transparency International Corruption Perception index for the year 2005
may be found at http://www.transparency.org/news_room/inocus/2005/cpi_2005#cpi
Bangladesh
For further information please see Special Report – Lawless law-enforcement
& the parody of judiciary in Bangladesh. http://www.article2.org/mainfile.php/0504/
Sri Lanka
For details please see Special Report on Torture Committed by the Police in
Sri Lanka, Article 2 Vol. 1, No. 4 http://www.article2.org/mainfile.php/0104/,
Second Special Report: Endemic torture and the collapse of policing in Sri
Lanka, Article 2 Vol 3, No. 1, http://www.article2.org/mainfile.php/0301/,
Focus, dysfunctional policing & subverted justice in Sri Lanka, Article 2
Vol. 6, No. 2, http://www.article2.org/mainfile.php/0602/,
and An X-ray of the Sri Lankan policing system & torture of the poor,
published by the AHRC. Please also see The Other Lanka, 184 pgs, published by
the AHRC and UN Human Rights Committee decisions on communications from Sri
Lanka, published by the Asian Legal Resource Centre in August 2005.
Burma
For further information please see Milking the cow dry in Burma, Article 2,
Vol. 6 No. 4 http://www.article2.org/mainfile.php/0604/294/
, Special Report: The Depayin massacre, Article 2 Vol 2, No. 6. http://www.article2.org/mainfile.php/0206/
and Burma, The myth of state stability & a system of injustice, The State of
Human Rights in Eleven Asian Nations – 2006, published by the AHRC.
Singapore
SINGAPORE: Chee Soon Juan's appeal in OA case to be heard tomorrow http://www.ahrchk.net/statements/mainfile.php/2007statements/1186/
India
For further information please see Special Edition – Militarisation &
impunity in Manipur, Article 2 Vol. 5, No. 6 http://www.article2.org/mainfile.php/0506/,
India, The lack of domestic remedies for human rights victims and the collapse
of the rule of law, The State of Human Rights in Ten Asian Nations – 2005
published by the AHRC and India, discrimination and injustice remain major
barriers in the world’s largest democracy, The State of Human Rights in Eleven
Asian Nations – 2006 published by the AHRC. Please also see Special Edition: Two
people’s tribunals on severe hunger & utter neglect in India, Article 2 Vol
4, No. 6. http://www.article2.org/mainfile.php/0406/
Posted on 2007-10-25
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