Torture in Asia

Basil Fernando, Executive Director, Asian Human Rights Commission

A paper prepared for the Seminar on the Prevention of Torture and Protection of Detainees’ Rights in China and Europe, organised by the Danish Centre for Human Rights, 18 – 20 April, 2001, Beijing, People’s Republic of China

When Cesare Baccaria (1738-1794), wrote his book An Essay on Crimes and Punishments in 1775 arguing against the use of torture he was a lone voice in Europe. At that time all European countries practiced torture for the extraction of confessions. However, the debate that he began led to enormous developments in Europe and elsewhere. In many countries of Asia today torture remains endemic. Those who resolutely oppose torture are still small in number. Though many states have signed the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT) and some even have ratified it, actual attempts to take effective action against torture are few. Notwithstanding, the debate that is now taking place on this issue is significant.

This paper begins with a statement from a recent seminar of 25 participants from 10 Asian countries condemning torture and making suggestions for its eradication. It is followed by a selection of writing (most pieces from the seminar participants) on current conditions in several Asian countries, and a conclusion with some recommendations.

TORTURE AND OTHER CRUEL, INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT: THE MOTHER OF ALL HUMAN RIGHTS VIOLATIONS

Final Statement of the Consultation on Torture organised by the Asian Human Rights Commission; Bangkok, Thailand, November 2000

1. Twenty-five participants from ten Asian countries gathered in Bangkok from 5-10 November 2000 to discuss the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. The participants unanimously agreed that throughout Asia acts of torture and degrading punishment are highly prevalent and pose a threat to the human rights of the people of Asia. So long as law enforcement authorities continue to practice torture, people will perceive them not as guardians of the law but as violators of human rights. Asian communities living under the threat of such grave violations need to take a more active part in influencing the law enforcement authorities of their countries to alter methods of criminal investigation and other dealings with the members of their communities.

2. Violations of all human rights – whether civil and political or economic, social and cultural – begin with the use of torture and degrading treatment or punishment. Promotion and protection of all human rights therefore requires the prevention of torture and degrading punishment. This is especially the case regarding the rights of women. The protection of their rights requires the elimination of violence both in the public and private spheres.

3. In conflict-ridden areas of Asia there is much talk about peace and conflict resolution, however such objectives are unachievable without the elimination of torture and inhuman punishment. Many violent conflicts in Asia have begun due to extreme use of torture and degrading treatment or punishment on sections of the population, particularly upon the young. Acts of torture and inhuman punishment invariably give rise to extra-judicial killings. Study of extra-judicial killings and disappearances in Asia reveals that such atrocities are clearly rooted in hardened practices of torture and inhuman treatment by law enforcement agencies.

4. We, the participants at this seminar, note that the widespread use of torture poses the greatest threat to development of democratic institutions in Asia. So long as the people perceive law enforcement agencies as fearsome places where violent persons exercise their power over civilians with impunity, no trust can be built for cooperation. Such fear exists everywhere in Asia. The use of law enforcement agencies for political ends has aggravated the situation. All aspects of democratic life, such as free and fair elections, fair trial and the participation of people in economic development are vitiated by the use of torture and degrading punishment.

5. In international law, torture is today considered among the highest of crimes, the gravity of which is comparable to crimes against humanity and war crimes. The jurisdiction against torture is not confined to domestic courts, but is extended universally. However an examination of case law in the Asian region does not reveal a reflection of international law on this matter. Often local courts in the region seem to take a less serious approach and thereby condone the wide practice of torture and other inhuman treatment. A change of approach in the local courts, in keeping with international law on torture, is an essential element in altering this age-old practice ingrained in Asian societies. To create an atmosphere of intolerance to torture among the judiciary, education of international law on torture and sharpening of judicial sensitivity by way of social criticism are essential.

6. Community leaders, community organizations and public opinion makers have a paramount role in the formation of social policy to eliminate torture in criminal investigation and all other dealings of law enforcement agencies with society. Sadly, their record of involvement in the elimination of torture is rather negligible. In some instances political leaders exploit law enforcement agencies for personal ends and thus encourage the practice of torture and degrading treatment of their opponents and others. Such short-sighted approaches encourage law enforcement authorities to use the same methods for their own ends. Thus the age-old institutional habits of torture and degrading punishment get further entrenched. Under such circumstances the law enforcement authorities can become a threat to the continuity of democracy itself, as demonstrated by the recent experiences of several Asian countries. A change in attitudes of community leaders, community organisations and public opinion makers is essential if this grave abuse of human rights is to be eliminated.

7. Leaders of religious organisations and all who advocate the promotion of basic human values need to take a far greater interest in the elimination of torture than they have done in the past. Religious leaders and their organisations have not shown a great resistance to the evil practice of torture and degrading treatment; there is not much in the record of their activities and statements to show that they are actively resisting and morally condemning this practice. A morally tolerant attitude towards torture and degrading treatment has serious impact on the promotion of the human dignity of all persons. This moral apathy against a widely practiced social evil needs to be negated.

8. Civil society organizations, NGOs and all concerned persons need to demonstrate much greater will to eliminate this social evil. An Asia-wide campaign for elimination of torture needs to be undertaken and pursued with determination. So long as such barbaric practices prevail within law enforcement agencies it will not be possible for civil society organizations to make a contribution to their societies. Ultimately the onus is on those advocates of democracy and human rights to see that such practices are applied. In order to create space for people’s participation in the democratic process, it is essential that activities to eliminate the practice of torture be undertaken with greater vigour.

COUNTRY REPORTS
NEPAL

Presented by Yubaraj Sangroula, Advocate; Rachana Shrestha, Advocate, and Fr. K Bogati, at the Bangkok Consultation

Background

Nepal has signed and ratified 16 international human rights conventions or treaties concerning protection of human rights, including the Convention on Torture and International Covenant on Civil and Political Rights. Article 14 of the 1990 Constitution has explicitly prohibited torture. Despite these efforts, incidents of torture are commonplace in Nepal, especially in the preliminary stages of custody during police investigation of crime. In some cases, the incidents are really grave.

A comprehensive study on the criminal justice system released in 1999, “Analysis and Reforms of the Criminal Justice System in Nepal”, reports incidents of torture to be widespread: 67% of respondents complained various kinds of torture during the police custody. Verbal abuse, compulsory and random hand-cuffing, hand-cuffing with a long iron chain, unhygienic custodial rooms, and denial of permission to receive visits were among complaints. Many of those tortured are arrested on accusations of being Maoist rebels. Many people are detained even after being given an order for release by the courts.

Nepal also has a serious problem of its girls being sold to Indian, Bangladeshi and Arab brothels. Nepalese society is male-dominated; the women have to put up with lots of discrimination. Most of the country is rural, development is low and people do not send their children to school, especially the girls, whom they think do not need to be educated. Thus girls from rural areas are very vulnerable to trafficking: they are uneducated and unable to stand on their own; they experience abject poverty. As a result, every year 5-6000 girls are taken out of Nepal to be sold into prostitution. Most of the time they are taken without their consent. The Times of India newspaper estimated that around 200,000 Nepali girls are working in Indian brothels.

Problems
1. The Torture Compensation Act (1996) is inadequate. If a claim of torture is sustained in court, the victim may be paid compensation by the State and the perpetrator may be liable to departmental action. However, there is no follow up as to whether departmental action has taken place or not.

2. The Torture Compensation Act has not defined torture as a crime, and thus impunity prevails: owing to the absence of deterrents, repetitions of incidents are commonplace, even in the capital city. No judicial inquiries of alleged incidents are conducted.

3. Trial courts are insensitive to incidents of torture. Many accused complain that they were tortured to force a confession; however trial courts still happily accept the confessions as evidence. Only in very rare cases are the accused sent for medical examinations, but long after the fact.

4. Since courts accept confessions as evidence, police tend to concentrate on obtaining confessions, as this method will ease their obligation to go into a detailed investigation of the offence.

5. The government could do more for trafficked girls than it is now. More girls have to be educated for this problem to be solved. The trafficking problem is linked to issues of education and poverty.

Positive Developments

1. The National Human Rights Commission has finally commenced operations, hence there is now a forum for reporting incidents of torture. The Commission’s active and strong intervention in the “Maitri Hospital” case, where the police forcefully snatched suspected Maoists, has created some deterrence for police. However, the Home Minister’s open support of the police action has raised suspicion among the people as to the government’s commitment to human rights.

2. The Center for Legal Research and Resource Development (CeLRRd), Amnesty International and the Police Headquarters agreed to jointly conduct an awareness scheme at the junior level of police personnel, using a poster describing suspects’ rights during detention.

3. With the support of DANIDA, CeLRRd is coordinating a project to draft common criminal procedures’ guidelines with the judiciary, government attorneys, police and Nepal Bar Association. The guidelines will give instructions on the human rights of an accused for every step through the justice system. Upon completion of the guidelines, all agencies will be given orientation on their application, and specialized training will follow for concerned officials.

MALAYSIA

Presented by Zaid Kamaruddin and Lim Guan Eng, at the Bangkok Consultation

The Malaysian Government has recognized the Universal Declaration of Human Rights (UDHR) more by breach than compliance. In Malaysia, there is no equality before the law; no right to a fair and public trial; no presumption of innocence; no right to peaceful assembly; no freedom of thought, conscience and religion; and no freedom of opinion and expression.

The Malaysian Government has steadfastly refused to ratify the International Covenant on Economic, Social and Cultural Rights and International Covenant on Civil and Political Rights since both came into force in 1976. Although Malaysia has not ratified the principal covenants that have flowed from the UDHR, it is required as a member of the United Nations to uphold the principles of the UDHR.

Under the UN Charter, Malaysia has pledged to take joint and separate action with the UN for the achievement of universal respect for – and observance of – human rights and fundamental freedoms. In addition, it is required to act in accordance with UN resolutions and declarations on human rights. Instead, Malaysia has deemed fit to publicly criticise and question the application of these standards to the country’s political, economic and social context, especially in relation to an ill-defined “Asian values” system. In customary international law, all human rights are universal, indivisible, interdependent and interrelated. The only way that States can justify their non-compliance with customary norms on some human rights is on the basis of a public emergency threatening the life of the nation, or similar necessity: a criterion that does not apply to Malaysia.

There is also no freedom from being subjected to cruel, inhuman or degrading treatment or punishment. Instead, government agencies’ use of torture – whether consciously or unconsciously – is not only prevalent but is gaining ascendancy in Malaysia. It is not surprising therefore that the government refuses to ratify the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment. 
Torture has been part of police and government culture since the early decades after independence in 1957, but it has always been hidden from the public eye, never seen as a burning issue that represents a gross violation of basic human rights. Apathy to this silent culture of torture by a large section of the public could be due to a host of factors, among them feudal traditions, an attitude that criminals caught should be tortured as a form of punishment and even a sense of “public order”.

Despite growing awareness, there was little positive reaction from the public, as people have tended to believe the government’s denials or self-serving explanations for unfortunate events that have led to torture. The public has been moved only when cases of torture and beatings have been caught on camera, completely repudiating the government’s lies. Nothing highlighted the government’s total loss of credibility more than when former Deputy Prime Minister Anwar Ibrahim was severely beaten up the Inspector-General of Police himself in 1998. The Prime Minister’s attempts to avoid responsibility by saying that Anwar Ibrahim’s injuries were self-inflicted only aroused anger and hardened sentiments against such torture. Yet, the government has consistently denied that torture exists within the security services.

The fight against torture will only succeed when public support is galvanized to pass laws that not only ban but also provide remedies to victims of torture. Draconian laws that directly or indirectly encourage physical, psychological or mental torture – the Internal Security Act, the Police Act, the Sedition Act, the Printing Presses & Publications Act and the Official Secrets Act – need to be abolished or revised.

Judicial independence must also be established to ensure that no evidence obtained under duress or torture is permitted. Clear guidelines must be established which requires heavy punishment for perpetrators, and compensation must be given to the victims. The Malaysian Government must be pressured to ratify international covenants, and is made subject to the jurisdiction of the United Nations Human Rights Committee.
Finally, we can only succeed with public support. As has been said, “Evil exists because good people do nothing.” It is time for good people to act.

KOREA

Presented by Angelica Eun-ah Choi, Human Rights Activist, Sarangbang Group for Human Rights, at the Bangkok Consultation

Although the South Korean government ratified the Convention Against Torture, Inhuman, Degrading Treatment of Punishment in 1995, it reserved the communication procedure that makes articles 21 and 22 possible. At that time human rights NGOs protested this move, but the government announced that Korea’s peculiar division mandated the reservation of this procedure.

Paragraphs 2 and 7 of article 12 in the Constitution provide that, “No citizen shall be tortured or compelled to testify against himself in criminal case” and that, “In a case where a confession is deemed to have been made against a defendant’s will due to torture, violence intimidation, unduly prolonged arrest, deceit, etc., or in a case where a confession is only evidence against a defendant in a formal trial, such a confession shall not be admitted as evidence of guilt, nor shall a defendant be punished by reason of such a confession.”

The Criminal Procedure Law also prohibits torture and other cruel inhuman and degrading treatment or punishment, but police have a tendency to treat suspects as inhuman and in practice commit torture. Recent surveys conducted by NGOs indicate that while torture of prisoners of conscience has decreased, torture of non-political prisoners has prevailed. People of low social position, such as foreign labourers and the homeless, are exposed to an environment of torture. However not only such people are subject to abuse. In a recent case, protesting teachers holding a peaceful demonstration to demand enforcement of a collective bargaining agreement and normalization of public education were arrested, detained, strip-searched and forced to endure other humiliations. While strip-searching is technically legal, it is only so in cases where the search is relevant to the crime, which it was not in this instance.

Prevention of human rights violations requires just and fair punishment of perpetrators and compensation of victims. In this regard, Korea has a long and difficult way to go until it solves the problems of impunity.

Many people suffer in the aftermath of torture. They go to mental hospitals and commit suicide. In South Korea there are few doctors and hospitals able to treat people in the aftermath of torture. Medical jurisprudence to decide whether or not people are suffering due to torture has not been developed, so it is hard to win a suit in civil action, although in at least one recent case the plaintiff was successful.

In most cases police accused of torture have been released without charge or for lack of evidence. In 1999 Lee Gun-ahn, a notorious torture specialist, gave himself up. Now he is on trial. Apart from him, it is difficult to find and punish offenders in anonymously committed torture cases, as they are living under the authorities’ protection. It is therefore also important to investigate the powers that back torturers and make legal judgements in their regard.

As the government hasn’t shown that it will seriously attempt to solve victims’ problems, NGOs have felt the need to take initiative in this matter and have established the Korean Center for Human Rights (KCHR). The KCHR’s mandate is to investigate and rehabilitate victims of human rights abuse. Until the creation of the KCHR the aim of NGOs had been to reveal the actual human rights situation, resulting in economic and symbolic compensation to victims but leaving many still suffering both psychologically and physically. Particularly in the case of torture, not only the persons concerned but also their families suffer. With the establishment of the KCHR, they too can receive treatment.

To address torture:

1. Police must be educated about human rights and should learn not to force suspects to confess.
2. Offenders should be punished without an arraignment deadline. 
3. It is necessary to compensate victims for medical treatment in special hospitals. 
4. The government should inform citizens about the Convention through human rights education, whether via TV advertisements, the public education system, or other materials.

BURMA

Report from Burma Issues submitted to the Bangkok Consultation

Presuming an historic role for itself as sole defender of national integrity, the army in Burma (Myanmar) has assumed the mantle of state by consistently perpetrating violence against its own people through a pervasive authoritarian culture imposing military values, discipline and punishment on the entire civilian population. Systemic abuse, torture and inhuman treatment have become mundane; overt and subvert violence is justified in the name of national prestige and unity. The army attacks the population on all fronts: legal, social, economic, cultural and political.

In some Asian states, overcoming widespread use of torture and inhuman treatment is now a matter of building the will to enforce existing statutes for protection of people’s rights, or the will to introduce legal mechanisms through political process; in Burma “rule of law” exists, at best, only to the extent it is dictated. The government has not ratified any international covenants that would offer protection against torture and inhuman treatment, nor has it domestic laws to do likewise: the absence of a constitution and civil codes outlining the rights of citizens guarantee nothing but that individual rights are subsumed by those of the State, and are confused with those of the State – such as through media exhortations that the “people’s desire” is to “crush all internal and external destructive elements as the common enemy”.

While reports from Burma indicate massive human rights abuse, the government policy of blanket denial makes the depth and breadth of violations difficult to gauge. Whereas in many countries NGOs and other agencies are challenging authoritarianism and human rights violations from within their societies, prohibitions on independent civic organisations in Burma mean that the government is able to pursue its objectives entirely without checks and balances. Nonetheless, ample evidence of widespread torture and inhuman treatment exists particularly in:

1. Military intelligence detention centres and prisons, where physical and psychological abuse and torture are routine during both initial interrogation and throughout periods of confinement. 
2. Areas of the country subject to counter-insurgency operations, where civilians are systematically tortured and abused by troops when detained, when conscripted into forced relocation and labour programmes, and when entire populations are perceived as obstacles to military objectives.

The apparent lack of international concern for this grinding tragedy may be due in part to the dim prospects for immediate change; the army’s control is both formidable and uncompromising. While it has permitted the International Committee of the Red Cross to resume a limited role in monitoring of prisons, those parts of the country where human life is most readily debased are entirely outside the scope of efforts for monitoring from inside. A recent initiative by the Australian Government to encourage establishment of a national human rights commission has been condemned by outside agencies as nothing more than a public relations exercise for the image-conscious military.

Cessation of torture and inhuman treatment necessitates prior recognition of basic freedoms: when fundamental rights – to life, to food, to work, to freedom of association – are diminished before the State then attempts at reform are crippled. A shift in governance may be an integral step towards change in Burma’s culture of chronic abuse, but not an end in itself. Only when violence is no longer accepted as the inherent sanction of authority will torture.

SRI LANKA

Presented by Priyantha Gamage, Attorney-at-Law

Sri Lanka is an ancient civilization where barbarous forms of punishment prevailed alongside acts of justice and fair play by feudal monarchs. After Sri Lanka became a British colony, the Kandyan Convention of 1815 was the first attempt to eradicate torture. Abolition of torture is now policy in Sri Lanka: the constitution guarantees all people freedom, equality, justice, fundamental human rights and independence of the judiciary. Article 11 of the 1978 Constitution states that no person shall be subject to torture or to cruel, inhuman or degrading treatment or punishment. This is an absolute fundamental right: it applies equally to criminals and non-criminals alike. Sri Lanka has also ratified the UN Convention against Torture.
However torture is practiced. Both ongoing civil conflict – which has lasted over 18 years – and the Sinhala youth insurrection have been used by successive governments to introduce draconian laws, namely the Prevention of Terrorism Act (PTA) and “Emergency Regulations” framed under the Public Security Act. Under the PTA, a prescribed police officer may arrest any person connected with, or reasonably suspected of being connected with, any unlawful “terrorist” activity. Such a person may be kept in Police Custody for a period up to 72 hours prior to being produced before a Magistrate. The Magistrate has no discretion but to remand the person until conclusion of the trial. Under normal law the police can keep a suspect for only 24 hours prior to bringing the person before a magistrate.

Draconian measures such as these resulted in the mass disappearances of the period 1989-92. Even though the official number of disappearances is 30,000, unofficially it is believed to be over 60,000. When the present government came to power in 1994, it promised justice for the bereaved families, nevertheless those promises are still unmet: the official number of prosecutions is said to be merely some four hundred cases, and that figure is believed to be exaggerated. And while this government appointed three Presidential Commissions to examine disappearances, the extensive recommendations of these Commissions have so far been ignored.

Role of the Human Rights Commission of Sri Lanka in protection against torture

The Human Rights Commission Act was introduced in 1996. Its provisions are adequate for the Commission to investigate violations of fundamental rights, including acts of torture. Any victim can invoke the Commission’s jurisdiction in respect of violations or imminent violations. Unlike other statutes dealing with torture, the Human Rights Commission can, on its own, initiate inquiries into alleged violations of fundamental rights, including freedom from torture. However the Act does not provide an efficient procedure to grant relief to the victim.

How to prevent torture and disappearances

1. Many acts of torture could be prevented if the opportunity to torture were kept to a minimum by informing the Human Rights Commission of all arrests within 24 hours. 
2. All personnel who arrest and interrogate must bear clear identification tags with their name and rank.
3. An arrest memo should be kept for each detainee with the time and the date of arrest signed by a witness and the detainee him/herself, and the place of detention. A relative or friend should be informed of the arrest.
4. A diary should be maintained at each and every detention centre.
5. All detainees should be produced for a medical examination at the time of the arrest and ever 48 hours while in custody.
6. Copies of all documents must be sent to the magistrate concerned.
7. All detainees should be allowed to have an attorney present at all interrogations.
8. All provincial councils, the central government and police stations should be informed of these measures. Provincial councils must file an affidavit of compliance.
9. All persons found to be tortured must be paid compensation, in addition to disciplinary action being taken against the perpetrators. Agencies refusing to comply with regulations should be held in contempt of court.
10. There should be a system for civil society, lawyers, judges and representatives of professional groups to visit places of detention.
11. A culture of respect for human rights, especially fundamental rights, should be built into society through education and other methods, from a young age.
12. There should be a hotline to complain about violations of human rights.
13. Organisations need to network with one another. 
14. Free legal aid and advice must be made available to detainees.
15. Various kinds of awareness programmes, including training for the police and army personnel, need to be developed.
16. The recommendations of the Human Rights Commission need to be implemented.

The Government of Sri Lanka must:

1. Incorporate the RIGHT TO LIFE into the Constitution.
2. Review Emergency Regulations.
3. Establish a separate organ for the welfare and assistance of bereaved families of the disappeared.
4. Make an official apology for disappearances.
5. Further empower the Human Rights Commission.
6. Use the Torture Act (only 7 cases to date).
7. Increase the time limit of one month in Fundamental Rights Applications at case level.
8. Initiate proper criminal investigations in all cases: conduct prosecutions where there is evidence; and properly, adequately and without delay compensate all families.
9. Have an official continuing human rights programme.

CAMBODIA

Review of a 2000 report by LICADHO, a well-known human rights organization in Cambodia

Unfortunately, torture in Cambodia-and attempts to render pain as power-did not end with the Killing Fields during the Khmer Rouge period of 1975 to 1979. Torture still exists in the country today as an institutionalised device employed by the state security apparatus. In a report entitled “Less than Human: Torture in Cambodia” released on 26 June 2000 (International Day to Recognise the UN Convention against Torture and Other Forms of Inhuman and Degrading Treatment or Punishment) the Cambodian human rights organisation LICADHO outlined the conditions that permit and perpetuate torture in the country and made recommendations to end its routine practice there.

Among the conditions that LICADHO cites as fomenting torture in Cambodia are the decades of war the country has suffered that have perverted the social structures and values of society, creating a national environment in which violence is too easily regarded as a normal characteristic of life. Other factors include long-held notions of power, hierarchy and patronage as well as traditional social attitudes that, for example, view women as second-class members of society-all of which are reinforced by low levels of education. In addition, the low salaries given to police officers and their lack of training contribute to the problem of torture as well. Most importantly, the report notes that the reliance of the police and judiciary on the confessions of prisoners to secure a conviction has made torture an accepted part of the Cambodian legal system.

Although Cambodia is a signatory to CAT and torture is forbidden in Cambodia’s 1992 Criminal Code and 1993 Constitution, “Torture continues to exist”, says LICADHO in its report, “because the authorities condone it, if not encourage it.”

“Torture,” the report adds, “impedes the development of the rule of law and contributes to a climate of impunity and exploitation. Law enforcement officials who are permitted, if not encouraged, to commit torture become the criminals whom they are supposed to combat… Prosecutors and judges who turn a blind eye to torture similarly ignore other police abuses and cannot be depended upon to uphold the rule of law.” Moreover, “torture, particularly when used for political motives, impedes the development of democracy, freedom of expression and political and social debate.”

LICADHO maintains that torture will continue in the country until the law is enforced. “The government and judiciary are prime accomplices to torture in Cambodia,” the report states. “A lack of political will power to strengthen the independence and professionalism of the judiciary, among other necessary reforms, is the biggest barrier to [eliminating the use of torture in Cambodia].”

This creates an environment, says LICADHO, in which “Cambodian torture victims are victimised repeatedly-first by the torturers and then by a government and judicial system which at best ignores the victims and at worst condones the barbaric and illegal treatment of them. They are often further victimised by the economic consequences of torture, as their physical or psychological injuries make it difficult for them to earn a living.”

The report notes that the majority of cases of torture in Cambodia are non-political, that it is primarily used in police stations to extract a confession, which is then used to convict the person in court. Torture, the report continues, also takes place in prisons (as well as in military camps and other places of detention), in which it is usually used by prison guards-or inmates recruited by guards-to punish prisoners who attempt to escape.

However torture in Cambodia is not confined to the public sector of society, for the report underlines the fact that physical, emotional and psychological forms of torture are part of the private sphere of life as well: sexual trafficking and domestic violence bring torture and the use of pain to control behaviour into the country’s brothels and homes.

“Torture in any form,” says LICADHO, “like all human rights violations, flourishes in secrecy and denial. Breaking that silence, exposing its practice and its consequences and giving victims a voice is a vital step toward preventing scores of new torture victims from joining those of the past.”

This report is an attempt to illuminate the problem of torture in Cambodia and to offer some remedies. Because the government is currently drafting a new criminal code and a new criminal procedure law, now is an opportune time to transform the country’s legal framework that presently condones the use of torture as part of the legal process, says LICADHO. Among the report’s specific recommendations, it calls for the new criminal code and criminal procedure law to contain the following provisions:

• Torture cannot be justified because it was ordered by a superior official or any public authority or because of any exceptional circumstances, including political or military instability;
• New criminal offence of torture shall be established that is applicable to civilian and military police officers, prison staff, soldiers and all public officials;
• Criminal charges shall be filed by judicial officers against those who allegedly engage in torture whenever there is evidence that an act of torture has occurred;
• All criminal offences shall result in mandatory higher penalties when committed by a member of the police force or military or a public official or civil servant;
• A medical examination and treatment shall be given immediately to any detainee who bears or complains of injuries when sent to prison or brought before a court, including the issuance of a medical certificate for the court on the nature of the injuries;
• Judges shall drop all criminal charges and the prisoner shall be immediately released on the grounds of procedural errors in any case in which there is reasonable evidence that an accused person has been subjected to torture;
• Confessions allegedly given by detainees in police custody are not admissible as evidence of guilt in criminal trials;
• Any arrested person has a right to decline to answer questions asked by the police, except to provide their name and personal details, and a right to have a legal representative present during any interrogation by the police;
• Immediate access to lawyers and legal organisations must be given to detainees by the police;
• At least one visit by a family member, friend or other person requested by a detainee must be granted by the police during police detention; and
• Access to police stations and prisons must be made available to prosecutors, judges, members of the human rights commissions of the National Assembly and Senate and representatives of legal, human rights and medical non-governmental organisations to inspect prison conditions, to conduct private interviews with prisoners and to provide medical treatment to detainees.

With regards to combating the brutality common in sexual trafficking and domestic violence, the report notes the involvement in sexual trafficking of police and military officers as well as other officials, and underscores the apathy with which laws against domestic violence are enforced. In response, it recommends the following policy changes and law enforcement measures:

• Public officials who participate in or are complicit in any way in sexual trafficking or forced prostitution, including the acceptance of bribes, shall be dismissed and prosecution shall be initiated against them;
• Police and other local officials in areas where prostitution is prevalent shall be regularly rotated;
• A central register of alleged perpetrators of sexual trafficking and their accomplices shall be created and distributed to law enforcement officers nationwide;
• Specially trained police officers, especially women, shall be assigned to all police stations to receive and investigate sexual trafficking and domestic violence cases;
• Victims of domestic violence shall be able to obtain restraining orders against those who abuse them and to receive compensation for their medical costs and rehabilitation; and
• The civil law on divorce shall be amended to make domestic violence valid grounds for divorce.

To assist this process, the report encourages the international community to place its greatest priority in its relations with Cambodia on firmly establishing the rule of law. In this regard, the international community should support long-overdue police reforms, the report says, that include the establishment of a police training school for new recruits and current officers to instil in them proper criminal investigation techniques and respect for the law as well as human rights education. Specialized training in the investigation of sexual trafficking and domestic violence cases should also be made available. In addition, police reforms should include the recruitment and promotion of police officers based on merit rather than nepotism or corruption.

In its attempt to end the use of torture in the country, LICADHO is seeking to restore the value of humanity to Cambodia, for “torture is about treating people as though they are less than human”, LICADHO explains. “Torturers invariably de-humanize their victims, labelling them as enemies, criminals or possessions and, therefore, implicitly justifying barbaric treatment of them as though they were animals or objects of lesser or no value.” However, “The people who have lost their humanity,” LICADHO concludes, “are, of course, the torturers, not the tortured.”

INDIA

Extracts from “Words into action”, a report by Amnesty International [1]

Despite several positive initiatives in recent years, torture and ill-treatment continues to be endemic throughout India and continues to deny human dignity to thousands of individuals. Amnesty International believes that there is a depressing repetitiveness about statements made by government officials, members of the judiciary, senior police officials and others in official reports and studies during the 1990s and further into the past, many of which are referred to throughout this document, which have all identified and acknowledged a serious problem of torture and ill-treatment within the criminal justice system.

Amnesty International continues to receive numerous complaints of torture and ill-treatment from all states of India which indicate that Supreme Court orders, NHRC [National Human Rights Commission] guidelines and official sanctions have not deterred officials from inflicting torture on individuals in their custody. Methods of torture range from electric shocks to suspension from ceilings to severe beating with lathis [long wooden sticks] and kicking. In many areas of India beatings are not reported as torture or ill-treatment because they are so much a part of the arrest and detention process. This is particularly true in areas such as Jammu and Kashmir where detainees are routinely subjected to torture but rarely make complaints for fear of reprisals and because they feel lucky to be alive.

Corruption and extortion, lack of investigative expertise, a confession-oriented approach to interrogation, demands for instant punishment in the context of a crippled criminal justice system, the belief that punitive action will not be taken against torturers, and discriminatory attitudes are all reasons why torture and ill-treatment by law enforcement officials continues throughout the country. Discriminatory attitudes amongst law enforcement officials continue to mean that the most socially and economically vulnerable members of society are particularly vulnerable to torture and ill-treatment. These include women who are not only targeted directly but as a means of punishing their male relatives, dalits and adivasis who often bear the brunt of social discrimination in the form of physical violence and children who are easy prey.

While constitutional and legal provisions do, as the Government of India regularly argues at international fora, provide an elaborate framework of safeguards for detainees against torture, non-implementation of these safeguards and their absence in special legislation, ensure that torture continues despite these safeguards. Those arrested in areas of armed conflict are particularly vulnerable to torture, often leading to death in custody or extra-judicial execution since they are not offered some of the same basic legal protections as individuals in other areas.

CONCLUSIONS

Torture remains endemic in Asia. There are many causes for its commonality.

(a) Use of torture is a part of defective systems of justice

In considering the ways to eliminate torture, the totality of each justice system needs to be examined. Police, prosecutors and judiciary are important components of the system. The elimination of torture requires an agreement between these three components to eliminate torture. In most Asian countries the commitment of these three units towards this end is very limited. There is a general tendency to tolerate torture as ‘a necessary evil’.

(b) Police often are responsible for direct use of torture

Military also engage in torture under some circumstances. Paramilitary groups and other forces also use torture with the consent of law enforcement agencies. Thus reform of police and related agencies is an essential part of elimination of torture. In this regard, the Amnesty International report cited above makes pertinent observations. 
Amnesty International believes that the current policing structure encourages discrimination by allowing police to act at the behest of particular powerful groups rather than to act lawfully in the interests of society as a whole and by encouraging arrest on the basis of suspicion rather than on investigation and evidence. In practice also, the failure to prosecute many unlawful activities of police and the problems for victims in accessing justice mean that discriminatory practices are perpetuated.

Powerful sections of society often support police use of torture

A large section of people strongly believe that the police cannot deliver and cannot be effective if it does not use strong-arm methods against the criminals and anti-social elements of society. And these people include India’s political class, the bureaucracy, and large sections of the upper and middle class… In their own perception, the policemen feel that they are doing a job. They resort to torture for ‘professional objectives’ – to extract information or confession in order to solve a case; in order to recover stolen property or weapons of offence; in order to unearth other crimes that an arrested hardened criminal may have committed; in order to ascertain the whereabouts of other criminals; and in order to locate hide-outs… another ‘professional objective’ of the police often follows, which is, to terminate the criminality of a professional criminal, who could be a burglar, a robber or a gangster, or even a terrorist… by maiming him, by making him lame, rendering him incapable of further crime….Amnesty International believes that this perception of torture as an effective means of policing or punishment is not only unlawful but is fundamentally flawed. The use of torture or ill-treatment only serves to perpetuate violence and lawlessness rather than combatting it.

This AI report strongly supports police reforms

Amnesty International agrees with a growing body of opinion in India that there is an urgent need for reform of the police system. Demands for reform by police themselves, by the NHRC and by non-governmental organizations, have focussed mainly on the need to modernise a colonial police system which continues to operate under legislation enacted in 1861 and have called for a well-resourced police force free from political influence and operating efficiently and effectively as a professional service within the criminal justice system. Amnesty International believes that police reform is also an essential requirement in systematically tackling the problem of torture and ill-treatment.

Police are by no means the only perpetrators of torture. However, it is clear and has been widely acknowledged in almost all studies of the police carried out by both governmental and non-governmental bodies, that the system under which they operate on a day to day level facilitates torture and other abuses.

Amnesty International does not intend to list here all the problems identified within the current police system nor to rehearse all the arguments in favour of systematic police reform. However, the organization wishes to reinforce the message that many of the problems identified within the police system lead to human rights violations and that therefore human rights protection must be at the core of any efforts towards police reform. Corrupt political influence over the police ensures that illegal actions by police are routine and sanctioned by vested interest. There is no independent body to monitor police operations which contributes to widespread impunity for illegal actions including torture. The lack of separate professional investigative departments within the police force, lack of scientific and technical resources and political pressure to ”solve” crime, ensure that thorough and scientific investigation is rare and the use of torture or ill-treatment to produce confessions as a means of pinning blame for crime on individuals is common. Prevailing corruption within the police force encourages the practice of extortion which is often accompanied by threats or force.” [2]

(c) Defective prosecution systems perpetuate the use of torture

While role of Police in perpetuating torture has been acknowledged, what is often not clearly recognized is the role of prosecutors for the same. In fact the role of the prosecutors is even more important than that of the police. The prosecutors, who generally are more competent persons (often professionally qualified and experienced lawyers), have a greater capacity to regulate the justice system. They also often have greater power within the justice and systems. As the police have to collaborate with the prosecutors to in dealing with crime, prosecutors can play a vital role in ensuring the proper professional behavior of the police. Prosecutors, for example, can give their instructions on prosecution of crimes to the police in writing and thereby can make the system of criminal investigations more transparent and accountable. They can counteract police negligence by professionally monitoring criminal investigations.

In this regard, the Asian Human Rights Commission has commented on the situation in Sri Lanka. [3]

The present situation of increased crimes must blamed on the criminal investigation authorities and on the prosecuting department that in Sri Lanka is the Attorney General’s department. However, the relationship between these two departments themselves is inherently defective. As it exists now, criminal investigation is entirely the function of the police and if they fail to investigate, the prosecutors can wash their hands by saying that there is no evidence with which to prosecute. While this situation remains, all that the hangman can do is to send a few poor people to the gallows as a deterrent to others. This will only be a further mockery of justice in a country where justice is fast becoming a distant dream.

We instead call upon the government of Sri Lanka to seriously address the defects in the justice system that make the increase in crime possible and the increase in serious crime inevitable. The most vulnerable place in the system is the absolute separation between the criminal investigation function and the prosecuting function that exists. Without ending this separation, crimes will not only increase but more serious crimes will escape prosecution.

The reasons for such separation are as follows.

1. To end the absolute gap that exists in Sri Lanka between the criminal investigation function and prosecution function
The system as it stands now is for the police to investigate crimes and, in serious offences, to present the file to the Attorney General’s department, which may thereafter prosecute the case. If the police do not investigate a crime or do so very badly, there is hardly anything that the prosecutor can do, except to say that there is no sufficient evidence to prosecute. Thus, the ultimate responsibility to prosecute a crime rests with the police. If the vicious circle that produces the ‘no evidence’ argument is to be broken, it is necessary to build a link between the prosecutors and the investigators from the very inception of a case. This would mean that from the receipt of the first complaint up to the finalization of investigations the prosecutors would be informed of the investigations and could take suitable steps to guide them.

2. To bring the Sri Lankan law into line with the developments of other common law countries
The Sri Lankan practice of absolute separation between prosecutors and investigators is based on 19th century British practices. However in all of the major common law countries, including the United Kingdom, United States, Australia and India, no such separation exists. In these countries the prosecutor’s departments have extension offices in all areas and the police departments coordinate their activities from the very inception of such inquiries. It would be useful for Sri Lanka’s law drafters, legislators and the legal profession as a whole to study the developments that have taken place in other common law jurisdictions. In Civil law (the French system), the link between prosecution and investigation has always existed through the function of the investigation judge.

3. To create professional prosecutors
The present practice of conducting prosecutions through the attorney general’s department deprives the country of the development of professional prosecutors. Under the present set-up, lawyers in the Attorney General’s department spend a few years in prosecution work and then shift into other work. The Attorney General’s department has many functions and its lawyers shift from one to another. However, the acquirement of professional prosecuting skills takes a long time, as with any other serious profession. Besides, this allows individuals the option to enter and stay in this profession for a long time. In any profession, personal aptitudes and choice are important. This also has an impact on training. If the prosecutors are going to be in this profession for only a short time, there is no purpose investing in training for them. However, modern day prosecuting involves a high level of training and specialization. The mere fact of being an attorney-at-law is no sufficient qualification to be a competent prosecutor of serious crimes.

4. To create institutional habits within the prosecuting system
Professional habits are made with difficulty. The credibility of any institution of professionals will depend on the way, these habits are formed and transmitted. The present system as it operates through the attorney general’s department is not conducive to development of such professional habits and to ensure a continuity to a tradition of proper conduct of prosecutions.

5. To address the problem of increased crime
The government admits that there is a vast increase in crime. The only real answer to this is proper criminal investigation and certainty of prosecution for all crimes. The system as it exists now fails to do this. It is an unavoidable fact that the system needs to be corrected.

6. To deal with crimes committed by law enforcement agencies
It was just few months back that about 26 persons were massacred in the presence of about 60 armed-police. Each day bring reports of crimes in which law enforcement officers are involved. Over 30,000 disappearances have put the countries among those with the worst records in the world. It is simply ludicrous to leave these crimes to be investigated by the police alone. The repeated argument that comes up is that there is not enough evidence to prosecute these crimes. The evidence depends on competent investigations, which in turn depend on proper systems of accountability. To allow the present system of separation between prosecutions and investigations to continue is to connive with crimes done by law enforcement agencies.

(d) Weak judicial intervention and supervision

Except in a few instances such for example as Supreme Court of India in some of its interventions to eliminate torture, by and large judicial attitudes in the Asian region are lukewarm on this issue. In some instances the judiciary seems to feel powerless against the tide of powerful forces promoting lawlessness in society. The judiciary can often pass its responsibility on to others by excuses such as “What happens outside court is not within our jurisdiction”, or if police and prosecutors fail, “There is nothing we can do”. However, the result of such attitudes is that the judiciary will itself be weakened, and this in turn will further weaken the legal defense of peoples’ rights. A fundamental change in judicial attitudes is a necessary component of any attempt to eliminate torture.

(e) Some recommendations

For the elimination of torture, fundamental reforms of the police and prosecution systems and the judiciary are needed. Community movements must be involved to push public opinion in favour of eradication of torture
The following are recommendations made by Amnesty International: [4]

1.Condemn and never tolerate torture.
2. Address discrimination.
3. Prohibit torture and ill-treatment in law and amend or repeal legislation which facilitates it.
4. Address institutional problems which facilitate torture.
5. Provide adequate safeguards for detainees during arrest and detention, in law and practice.
6. Provide adequate safeguards for interrogation.
7. Provide effective independent monitoring mechanisms to ensure implementation of safeguards.
8. Ensure investigations into torture.
9. Ensure adequate procedures for medical examination of torture victims.
10. Bring to justice those responsible for torture.
11. Provide reparation to victims of torture.
12. Strengthen and support the National Human Rights Commission and other statutory bodies.
13. Provide effective human rights training to police and security forces.
14. Increase cooperation with national and international bodies in the fight to end torture.

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End Notes

1. ASA 20/003/2001, at www.amnesty.org. [Back to text]
2. Same report; ASA 20/003/2001.www.amnesty.org [Back to text]
3. ‘Reform of the Criminal Investigations and Prosecutions Systems is the real key to reducing crime in Sri Lanka’, Asian Human Rights Commission statement, 11 January 2001,www.ahrchk.net. [Back to text] 
4. In ASA 20/003/2001. [Back to text]