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 victims 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: Thailands 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/in_focus/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 worlds largest democracy, The State of Human Rights in Eleven Asian Nations 2006 published by the AHRC. Please also see Special Edition: Two peoples tribunals on severe hunger & utter neglect in India, Article 2 Vol 4, No. 6. http://www.article2.org/mainfile.php/0406/
