by JaveriaYounes
“If you want a picture of the future, imagine a boot stamping on a human face—forever.”
Perhaps the author of these words, George Orwell, could not have expected his prophesy would materialize quite as it has today. Torture has become a hard-hitting reality of our time; it is no longer an issue of prisonersof war or alien combatants. It has now seeped into the very core of our society and the criminal justice system.
Barbaric Criminal Justice Systems Foster Torture
In Asian countries the system itself has become so corrupt that it perpetuates torture in all possiblemanifestations. In most Asian countries, colonial era policing is still practiced, and this barbaric style of policing, one that is essentially anti-citizen, has torture at its core.
In this outdated system of policing that prevails in most Asian countries, the very concept of modern, scientific, and forensic investigation is alien. Evidence usually implies getting a confession, and this is understood by policemen to only be possible through methods involving torture. A citizen-centric policing system, which fits into a modern democratic society, and something practiced in developed nations, is unheard of in most Asian countries.
So, if torture is to be addressed in Asian countries, where it is rampant, and is the usual routine method of law enforcement agencies, there will have to be a complete overhaul in the entire system of criminal justice administration.
Take Pakistan for instance. Presently, nepotism, corruption, torture, misuse of power, and illegal detention form the crux of what is the criminal justice system in Pakistan. Torture is often used to extract self-implicating confessional statements from suspects who are often innocent. The criminal justice system in the country is therefore no more an aid or a means to seek justice; for many it is a labyrinth from where there is no escape.
Political vengeance, property issues, and family feuds often lead to opposite parties implicating each other in fake criminal cases in many South Asian nations. Police are then bribed to torture innocent victims. The police often act as proxies for the powerful who want to settle scores against each other. In the absence of modern forensic tools, the Judiciary and the prosecution rely upon confessional statements. These statements are never crosschecked against available circumstantial evidence, resulting in making torture the only tool available to the police.
Custodial torture in many Asian nations is treated as an inevitable part of crime investigation. Investigators adhere to the notion that if enough pressure is applied, the accused will confess. The former Indian Supreme Court judge, V.R. Krishna Iyer noted that custodial torture is worse than terrorism because it carries the authority of the State behind it. In the same vein Montesquieu, a French political philosopher said, “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”
Criminal justice systems in underdeveloped Asian societies do not have a functional legal aid framework. Justice in these lands is elitist. Access to justice is often denied to the underprivileged minority groups such as the Rohingya in Burma, Dalitsin India, and the Ahmadi and the Hindu groups in Pakistan. Free legal aid and the prosecution are poorly funded with no administrative policies to enable judicial reform.
Allowing law enforcement agencies to become ineffective has also become a deliberate policy. The State that wishes to subdue its subjects will not allow a police department to become depoliticized. It exerts continual pressure on the police so they become like puppets, using them as a tool of suppression, rather than operating as a professional independent State institution.
Pseudo democracies in Asian states continue to perpetuate the colonial mindset: maintain complete control of the judiciary, the police and the prosecution, and have no regard for the dichotomy of power. A corrupt government cannot afford an independent judiciary. In general, there is a lack of political will to promulgate and implement police reforms.
In India and Pakistan, the police function under the outdated police act of 1861. This archaic law does not address the complexities of modern suburban, urban, and metropolitan policing. It does not criminalize torture as a mean of extracting evidence. Widespread corruption in the police department also adds to the problem of politicization.
Governments have not established forensic laboratories to assist in criminal investigations, so the police are not trained in the latest forensic techniques. Countries with good governance have a transparent policing and judicial system that ensures a speedy and efficient dispensation of justice.
Given these realities, nothing short of a complete re-engineering in the system of administration of justice is needed in these nations to bring an end to torture with impunity. While this is the primary requirement, a small beginning can be made if torture is treated as a criminal act and this law begins to be enforced.
Torture is Not Yet Criminal
The United Nations Convention Against torture (UNCAT) provides the most comprehensive definition of the term torture widely used in local legislatures:
Torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or a third person information or a confession, punishing him for an act he or a third person has committed or is suspected of having committed, or intimidating or coercing him or a third person, or for any reality of instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity. It does not include pain or suffering arising only from, inherent in or incidental to lawful sanctions.
While UNCAT has created a legal framework against torture, the edifice built is somewhat of a façade that has failed in reducing the incidences of torture. Furthermore, the UN is not playing an active role in clarifying inconsistent interpretations of the convention. It has allowed signatory states to enact toothless laws that do not provide redressal for the victim. In terms of Pakistan, the State has signed the UNCAT in 2008, and ratified the same in 2010, following pressure from civil society. However, there is still no law in Pakistan that criminalizes torture. Bangladesh has a model law that criminalizes torture. However, the law is sitting idly in the books, while the Bangladeshi police and paramilitary agencies go about torturing citizens with impunity. India, for its part, has not even ratified the UNCAT. These three nations in relation to a law that criminalizes torture shows just how much more work needs to be done even in terms of this small step to create a legislation that is enforced.
Torture Must Be Made History
Throughout history, dictators and monarchs have used state institutions to perpetuate their hold over the masses by silencing opposition. In Rome, during the medieval ages torture was used as a reformatory tool— a way to interrogate a slave. A slave’s testimony was admissible only if was extracted by torture, on the assumption that slaves could not be trusted to reveal the truth voluntarily.
The use of torture, however, had its critics even earlier, as far back as the 4thcentury. Aristotle, in his book Rhetoric has discussed the issue of torture he has thought the practice to be unjust and inhuman. He is quoted to have said that “those under compulsion are as likely to give false evidence as true, some being ready to endure everything rather than tell the truth, while others are really ready to make false charges against others, in the hope of being sooner released from torture.’[1]
In 1798, Napoleon Bonaparte, seemed to echo the words of Aristotle when he wrote to Major-General Berthier regarding the validity of torture as an interrogation tool:
“The barbarous custom of whipping men suspected of having important secrets to reveal must be abolished. It has always been recognized that this method of interrogation, by putting men to the torture, is useless. The wretches say whatever comes into their heads and whatever they think one wants to believe.”[2]
The reality is however that torture has accompanied human “civilization” with the medieval era being particularly barbaric. And, while human life has progressed in some parts of the world in the last century, if one looks dispassionately, there are still so many areas where conditions seem to have become worse in terms of the prevalence of torture, as if those parts have regressed to the medieval era.
More and more horrendous and inhuman forms of torture seem to be used today to destroy a person’s sense of orientation and self esteem. Not merely physical but also psychological and spiritual torture is being used, such as attacking cultural religious beliefs in a programmed and systematic manner.
To circumvent international law a new term “enhanced interrogation techniques” has been coined post 9/11 that glosses over the legal repercussions of torture. This move has diluted public reaction to the extent that it has engineered society’s consent to use torture as a means to extract information from an alleged militant.
Rape in custody is another form of torture that is being increasingly used against women held in custody. The Indian woman SoniSori is a classic example. A schoolteacher in the Indian state of Chhattisgarh, Sori was arrested on suspicion of supporting the Maoists. She suffered gang rape while in custody, with stones being inserted into her vagina and rectum. The Supreme Court has granted her interim bail, but no case, to date, has been registered to begin the process of justice.
Despite extensive lobbying by civil rights defenders to create awareness about torture, there is a rise in the incidents of torture. Perhaps defenders are answering questions not being asked?
There is certainly a need to mobilize the masses – make them question and seek answers. A complacent populace that will not question or rise against state atrocities cannot be helped. No amount of advocacy will make any difference.
Lessons from history are needed. What Gandhi and Martin Luther King managed to do, in the days when access to communication and information was limited, is remarkable. With meager resources at their disposal they succeeded in generating a public conscience.
Recently, Edward Snowden has been able to do just that. He has embarrassed the most powerful country and state organizations with the truth about their illegal actions. The power of one individual can cause a snowball effect and move society to action.
Human rights defenders should focus on becoming catalysts of change while generating a sense of hope among the masses to demand changes in their criminal justice systems to create a world that is free from torture.
About Author: Advocate JaveriaYounes is a social activist and legal researcher striving for an egalitarian society free from torture. Her research titled “Custodial Torture -Its Ramifications And Failure Of Institutions” has been published under the auspices of the Asian Human Rights Commission.She has also written a handbook on torture that helps a victim in seeking medical, legal, and psychological aid. She can be reached at javeria.younes@live.com
[1] http://jkranak.blogspot.hk/2011/05/aristotle-on-torture.html
2. Napoleon Bonaparte, Letters and Documents of Napoleon, Volume I: The Rise to Power, selected and translated by John Eldred Howard (London: The Cresset Press, 1961), 274.
