Statement on 'Towards a torture free Asia' received by Commission on Human Rights
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Asian Legal Resource Centre -- ALRC, Hong Kong
Towards a torture free Asia
1. Article 7 of the International Covenant on Civil and Political Rights (ICCPR) mandates that no one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. Article 16 of the Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment (CAT) prescribes each State Party to prevent acts of cruel, inhuman or degrading treatment, and to provide redress when such acts occur. Regardless of these provisions, the Asian Legal Resource Centre would like to reiterate its previous submission to the Commission [E/CN.4/2003/NGO/87]: torture is still endemic in Asia, and affects all other rights.
2. Torture by the state also precipitates domestic violence and sexual abuse. Sexual abuse, particularly rape, is one of the most heinous, brutal and dehumanizing forms of torture. Yet the police, the military and other state institutions cast with the duty of protecting the society are often the perpetrators of such torture. When the state and its mechanisms keep the tradition of torture alive, it is difficult to create a tradition of dialogue and common understanding. To create the foundation for a democratic society, it is essential to eradicate torture.
3. However, with the further undermining of the absolute prohibition of torture, on which the Asian Legal Resource Center has made a separate submission, torture remains the central human rights abuse in all Asian countries. As such, separate submissions on the issue of torture in Sri Lanka, Indonesia and India have also been made. Additional comments on Nepal, Myanmar and China follow, clearly showing that torture is a serious concern in Asia.
4. NEPAL: Nepal has ratified the ICCPR, and Article 126 of the Constitution of Nepal provides that on ratification or accession of an international convention or treaty, the provisions of the convention or treaty would be part of domestic law and would be equally applicable as the municipal law. However, Nepal continues to experience rampant extrajudicial killings, enforced disappearances, torture and arbitrary detention undertaken by all parties to the civil conflict there. The government of Nepal has not properly brought international conventions into domestic law. A case in point is the Torture Compensation Act, under which the perpetrators cannot be punished and the victims can receive only minimal compensation.
5. On 6 December 2003, two homosexuals, Jaya Bahadur Lama (28 years old) and Mani Lama (20 years old), were severely assaulted by several Armed Police personnel in Kathmandu, after some hoodlums told the police that they were homosexuals. The hoodlums had been trying to extort money from the two victims, when the police arrived at the scene. Even though the hoodlums were suspect, the police started beating Mani on learning his sexual orientation. When Jaya tried to stop the police beating up his friend, the Armed Police slapped him.
6. Then the police threw both Jaya and Mani into the police van. In the van, the police tied up their hands, covered their faces, and forced them to lie face down. While the police drove around for almost one hour, they severely beat Jaya and Mani with boots and rifles in the van. Jaya and Mani were eventually taken to an unknown Armed Police camp. There, they were taken to a dark room and about 15 to 20 police men came and started beating them severely. The police accused them of being Maoist. After two hours of assault, the police forced Jaya and Mani to give them oral sex. But they couldn't perform this act even to save themselves from further beating and torture because they were severely injured by the assault. Then the police put Jaya and Mani back into the police van, and again tied them up and covered their faces. After some time of driving a van, the police threw them into the street on 2:00 am the next day (7 December 2003). Jaya was unconscious by that time.
7. Although the police promised to look into this case, as in so many other cases, no action has yet been taken. The Nepalese state continues to make no attempt to hold its agents accountable for violations of rights guaranteed by international covenants.
8. MYANMAR: Mr. Soe Win, a Member of Parliament was tortured in custody and was finally released on 29 June 2003. Soon after his release, he suffered a stroke. As a result of torture at the Military Intelligence Interrogation Centre, Mr. Soe also suffered serious injuries in his right eye and on his head. The eye infection developed while he was undergoing interrogation and the doctors who examined him after his release are of the opinion that his sight cannot be restored. Mr. Soe attempted suicide while in custody, unable to bear the pain of torture.
9. Across Myanmar people are arbitrarily detained on the suspicion of supporting illegal associations. Those accused are detained, tortured and sometimes killed with no warrant, charge or legal process. The military bases in Myanmar operate in a closed environment. The torture in such camps goes unseen and the personnel are unaccountable for their actions, not only within the confines of their bases but also in the general community.
10. If people detained are not taken away to military bases, then they are usually detained in villages. Places of detention include houses, temples, chicken coops, and public spaces such as the village football ground. In these cases torture and detention are intentionally carried out before the villagers to reinforce the power of the military over the villagers.
11. Myanmar has not ratified any international covenants that would offer protection against torture, nor does it have any domestic law addressing torture. The absolute screening of information within the country poses a major obstacle in monitoring human rights violations. The International Committee of the Red Cross is allowed occasional visits to prisons and detention centers. Sadly, the Government of Myanmar remains largely oblivious to international attempts at scrutiny and reform.
12. CHINA: In China, the practice of torture is still widespread despite China�s ratification to the CAT in 1988. Most cases of torture in China are committed by police officers. China has laws prohibiting torture such as Article 247 and 248 of the Criminal Law. However, the definition of torture in these laws falls far short of the definition contained in Article 1 of the CAT. Torture is still essentially defined as the use of physical force resulting in permanent injury or death or to coerce a statement for confession. Given this definition, torture is rarely prosecuted in China. Furthermore, these laws have not been strictly implemented. At the same time, the following problems greatly hinder the prevention of torture in China.
13. First, the awareness on anti-torture is low among the law enforcement personnel. On the contrary, many police officers used torture as a means to extract confessions from suspects. A related factor is that Chinese police officers lack the knowledge and skills needed in carrying out proper interrogation and investigation, and therefore rely on torture.
14. Second, illegally obtained evidence, such as through the use of torture, is not excluded under the present Criminal Procedure Law. As a result, this loophole encourages police officers to use torture to extract �evidence�, as such evidence is admissible. To prevent the use of torture, the Criminal Procedure Law has to be revised to make illegally obtained evidence inadmissible.
15. Third, China lacks effective supervision mechanisms on torture. There are no independent complaint bodies for people to make complaints against law enforcement personnel. It depends on the will of the seniors at a higher level to supervise the wrongdoings committed by the police at a lower level.
16. From this overview of torture in the Asian region, it is clear that the implementation of the CAT and the elimination of torture require the Commission to pressure states to:
a) Treat torture as a criminal offence, which should be written into domestic law.
b) Enforce the implementation of domestic laws that are indented to prevent torture. Until such legislation is implemented, the situation within the region will never improve.
c) Establish independent investigation units that have a legal responsibility to address torture cases, as well independent units to investigate complaints against the police.
d) Compensate the victims of torture adequately, with the perpetrators paying part of the amount.
e) Provide the National Human Rights Commissions with ample authority to investigate into any given crime. The decisions of these institutions should have enforceability.
f) Ratify the additional protocol to the Convention against Torture so that periodic visits by the Committee against Torture to various centers of detention can take place, with a view to making the necessary recommendations.
