Twenty-five participants from five countries gathered at this conference discussed the issue of torture in the region of south Asia.
The discussions were extensive and deep. The participants issued the following statement in order to draw the attention of the public to some very serious problems faced by the people in the region due to the defective nature of their justice systems.
Enlightenment on the system of administration of justice in the countries in South Asia has become a dire need. The unenlightened systems that exist today are creating grave crises in all South Asian countries and these systems have become a grave threat to the peace, security and stability of the societies in the region. People in the region are facing an utterly helpless situation, with a high degree of despair regarding justice. The law enforcement agencies have become the cause for intense fear, trauma and insecurity among the people. Immediate and effective reforms are needed to restore rational functioning of these systems.
Torture is practiced to a very high degree in the countries of the region. In fact torture remains the main method of criminal investigations in the countries. As compared to some other parts of the world criminal investigation machinery in these countries are extremely and shamefully primitive. These investigations are for most part carried out by quite incompetent persons whose educational qualifications are generally very low. Professional training too is for most part inadequate. Above all, the institutional arrangements encourage the use of illegal methods such as torture and there are no effective systems of real control in operation. Wherever written rules and regulations for better functioning of the system exist, these are by and large ignored.
Among the personnel belonging to the law enforcement agencies, often the sensitivity towards people does not exist. Except for the upper ranks in society no respect is shown to human persons. The rough manner even the women are treated is quite common.
In fact allowing the law enforcement agencies to become ineffective has become a deliberate policy. This policy has as its objective, the displacement of legal obstruction to many forms of economic and social activities which in normal times would be considered anti-social. People perceive links between anti-social elements and the law enforcement agencies. The consequent demoralization seems to be created on purpose to make the faith in justice system as a whole to collapse. This policy has by and large succeeded in most countries in the region and in some countries the degree of its collapse has reached dangerous levels. A significant result of this situation is that the civic-minded citizen, on whose cooperation the system rests, has begun to withdraw his/her cooperation in sheer frustration.
Such a situation leads not only to an increase of human rights abuse but also the increase in serious crimes. Even senior judicial officers have observed the failure of the justice system to control crime in Sri Lanka. Warnings have been made of serious spread of lawlessness and break down of the rule of law. Sri Lanka is only a manifestation of what might happen in other countries if the situation is not addressed seriously.
Some sections of the society have always remained victims of the abuse of the system. The Dalits and indigenous peoples of India continue to suffer from extreme forms of police brutality and are neglected by other agencies of the justice system. Though there are some laws for their protection, such as Atrocities against the schedule castes in India, these laws are not been enforced in an effective manner. In fact being neglected by the justice system is itself an added element of the insult and repression heaped upon these persons.
Another section of the society that is constantly subjected to ill treatment by the agencies of the justice system is the women. Rape remains a major problem. The treatment the victims have received in the hand of such agencies have left in them a taste of extreme insensitivity and frustration. Jurisprudence as practiced in the cases of rape has not kept up with the developments of the international law which considers rape as torture. The procedural developments regarding investigation and trials also have been neglected and the way that the matters are dealt with, remain very primitive.
The people belonging to the marginalised groups, such as workers in the informal sector are also often been abused. Among these are also found the persons working for the church organisations.
The same situation remains regarding children. The neglect of children’s rights is present through out the justice system. It is particularly evident in the case of the sexually abused children. The investigation in child abuses is primitive and the prevailing system of trial can cause trauma for children. There has been resistance to adopt the more developed system of trial by way of video camera with safeguards to the children. Deep cynicism leading to inhuman attitudes exists against all modern development at the heart of the justice systems.
In dealing with all these matters, one of the weakest links in the justice system, is the prosecution systems prevailing in South Asian countries. The prosecution departments often place the entire matter of investigation on the police and blame the lack of evidence as the reason for non-prosecution in serious crimes.
The police inefficiency provides the reason for prosecutors to wash their hands off. The arrangement adopted by more developed legal systems that place responsibility for prosecution of all crimes on the Prosecution Departments should be adopted and provision must be made to scrutinize all claims of absence of evidence.
In the case of torture the investigations by law enforcement agencies alone cannot be relied upon. Special units functioning under the supervision of the prosecution department must be given the responsibility for such investigations. The prosecution department must specially be held responsible for prosecution of torture cases.
In the International law, torture is regarded as a crime falling under Jus Cogens that is among the highest of crimes. However, Jurisprudence expressed by law and by interpretation in the courts does not reflect the adoption of these developments in the international law. Instead, torture is treated in a trite manner. Most complaints of torture are neglected. In the few cases that succeed, only the compensation is paid and that too in no way proportionate to the crime. It is essential to make the legal provision to prosecute torture on the basis of `Jus Cogens’ and the culprits should be subjected to imprisonment. The soft way torturers are been treated is only an encouragement to engage in this crime.
The solution to the problems mentioned above can come only from the people themselves. It is time that the people wake up to the grave dangers faced by their societies due to defective justice systems. The people must monitor all the agencies in the justice system; the police – the prosecutions and the judiciary. People must scrutinize the performance of the system and engage in making serious criticism of it. Mass mobilizations for the reform of the system of justice is a primary need. Only the people can bring about the change of the system from its primitive stage to an enlightened one adequate to meet the needs of the times.
Thus the implementation of the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment require quite a lot of initiatives on the part of the Governments as well as of the people in the region. Even India, which is the largest country in the region, and which describes itself as the largest democracy in the world has not even ratified the Convention. Sri Lanka which has ratified the Convention and enacted domestic law for its implementation (Act No.22 of 1994) has not successfully prosecuted any torturers, though the Supreme Court of Sri Lanka, and the National Human Rights Commission have declared after inquiry that many persons have committed torture and other cruel, inhuman or degrading treatment or punishment. Thus the proper implementation of the Convention requires;
a) That torture be treated as a criminal offence and be punished with Imprisonment: with the need for compensation being paid to the victims of this serious criminal act. The seriousness of the criminal act must be recognized by the penalties imposed against it. Besides, imprisonment may result in quick reduction of the torture among the law enforcement agencies.
b) That the Prosecutor General or its equivalent (for example the Attorney General in some countries) must bear the legal responsibility for prosecution of all cases of torture and other cruel, inhuman or degrading treatment or punishment.
c) An independent investigation unit must be given the legal responsibility of investigation of all cases of torture and other, inhuman or degrading treatment or punishment.
d) The National Human Rights Commissions – NHRC must constantly supervise the enforcement of the Convention against torture and other cruel, inhuman or degrading treatment or punishment or other related domestic laws. The NHRC can play a very positive role in promoting the Convention through education, investigations and making recommendations for the proper implementation of the provisions of the Convention.
e) Civil society organisations must take a very active role in promoting and monitoring the implementation of the Convention. They must particularly monitor the way the Prosecutors and the Investigators perform their duties and must expose the failures of such agencies.
f) The religious leaders and groups can play a vital role in promoting the Convention and doing all that they can to see to its proper implementation. Besides, they can educate the masses on ways that they can get themselves engaged for the elimination of torture.
