By Md. Ashrafuzzaman
INTRODUCTION:
There is an urgent and unavoidable need to protect people from torture. And, towards this end, there have been few notable legislative developments in Asia. However, despite the promulgation of select legislation in certain Asian jurisdictions, which now criminalize torture, the crime remains entrenched in the fabric of daily life.
The Asian countries that have criminalized torture, enacting special laws in compliance with the CAT are: Hong Kong (1993), Sri Lanka (1994), the Philippines (2009), Bangladesh (2013), and Maldives (2013). Some countries, like Pakistan and Nepal, are in the process of making domestic legislations criminalizing torture, while Cambodia has defined torture and its punishment in its Code of Criminal Procedure.
These examples showcase that simply criminalizing torture, without addressing the fundamental nature of the justice institutions that operate torture-friendly systems by default, is not a method that will bring success in eliminating torture. It is the basic framework of the judicial institutions and their functioning that is the key.
Criminalizing torture and refinement of legislative framework is suitable for developed jurisdictions, where the basic framework is in place. Systems characterized by liberal democratic principles have the rule of law as an accepted core value, in conformity with the normative frameworks. Of the Asian countries that have enacted special laws in compliance with CAT, Hong Kong is such a developed jurisdiction.
On the other hand, torture remains the norm in most Asian countries, which we may categorized as developing or dysfunctional jurisdictions. The realities of these developing nations with dysfunctional justice systems need to be addressed specially, with comprehensive understanding of the context and their differences with developed jurisdictions.
There are practical problems relating to the elimination of torture and ill-treatment in developing countries. These problems are directly connected to justice mechanisms operating within the institutions of justice. Law-enforcement, interrogation of crime suspects, criminal investigations, and custodial practices in most developing countries in Asia are different from that of developed jurisdictions, where legal and judicial systems are based on liberal democratic principles.
Comprehending these fundamental differences is essential if one wishes to understand why legislative advancements mean little in such places, and if a more effective path forward to eliminate torture across the world is to be charted.
So, lets examine the challenging features of developing jurisdictions that expose this contrast better. The experience of the Asian Human Rights Commission (AHRC) and its sister organization, the Asian Legal Resource Centre (ALRC), in working on the prohibition of torture and ill-treatment at the implementation level, has resulted in confrontation with the following enormous challenges:
1. Corruption has taken the place of accountability within the law-enforcement agencies to such an extent that the purpose of interrogation of a suspect and interviewing of a victim is not to uphold the rule of law. Instead, interrogation, investigation, and custodial practices are not always expected to lead to prosecutions. Rather, the entire process has accommodated torture and coercive methods.
Few examples may help us understand the realities:
In order to get the actual offender exonerated, the police can use physical or mental torture against a victim of crime or rape. The police insist that the victim name Y, instead of X, is the real offender, for their own benefit, and this insistence may have bribery or blessings from influential political or financial elites behind it. Importantly, interrogation or interview relating to crime concerned does not take place. The purpose of upholding justice does not manifest itself throughout the process. Instead, the law-enforcement agency officer deliberately contributes to damaging the process of justice through coercive methods.
One may ask how to prevent such practice of sabotaging justice, and if it is possible. The law-enforcement officer, involved in manipulating the process of interrogation or interview, should face criminal prosecution in a developed functional rule of law system. The same is virtually impossible, and scarcely even imaginable, in a developing dysfunctional system.
Likewise, once a complaint of manipulation of the justice process is made, the superior officers of law-enforcement agencies should be able to investigate the allegations credibly, and ensure corrective actions are taken immediately. In case of failures of superior officers of law-enforcement agencies, there should be accessible avenues to seek redress through the office of the prosecutors and the judiciary. The institutional systems should be able to protect the victim or complainant from any sort of retaliation. Any possibility of the victim or complainant being harmed by the law-enforcement officers may not happen in a developed functional system, which will ensure correcting the institutional and legal loopholes to prevent recurrence. Retaliation, and absence of corrective measures, is however, quite common in a developing dysfunctional systems.
2. In a developing dysfunctional institutional system, the purpose of interrogation of a crime suspect, or of interviewing the victim, is not so the process may lead to prosecution and the upholding of justice. The purpose is to lead the matters elsewhere.
A few examples may clarify this condition:
The law-enforcement agencies use interrogation or interview as tools to trade off between trial and settlement, known as alternative dispute resolution, in some jurisdictions. For instance, the investigating officer from the police may insist a victim of rape or acid attack marry the rapist, or withdraw the complaint in exchange of money, or stop pursuing the complaint any more. The settlement may be forced by the use of torture throughout the process of interrogation or interview. The law-enforcement officer uses this opportunity to extort bribes from both the suspect and the victim.
The judges, sometimes, want the suspects to plead guilty, offering a lesser penalty than that of the actual punishment prescribed by the law. This is done for the purpose of creating the record of more number of cases disposed by a particular court and for reducing the burden of pending cases. Such records of case disposal are taken into consideration for promotion, posting, and elevation of judicial officers. It’s more of a number game than any intention of upholding justice.
3. Inefficiency of investigating crimes makes torture inseparable from law-enforcement as well as investigation systems. An arrest, or interrogation, or interview, begins with torture, when the law-enforcement officers do not have any clue about the matter, such as cases of “terrorism” or “cyber crimes”. The popular law-enforcement notion is that “suspects do not divulge truth unless the third-degree method (synonym of coerciveness and torture) is applied during interrogation”. In order to quicken the process, torture is used to extract information, regardless of the quality or authenticity of information extracted. The idea is to get any information possible from a suspect, so that there is something to show superior officers. It is done in order to prove to the superior officers and the wider public that the officer concerned is “seriously” pursuing the matter.
Law-enforcement agencies believe torture will create fear in the psyche of the suspect, who will divulge information for the sake of avoiding further torture. This process causes much damage to the psychosomatic status of a suspect, who is a victim of random arrest without having a clue about the actual crime itself, as brutal form of torture is applied for not being able to extract any information from the suspect. The law-enforcement officers are, in many cases, well aware of the innocence of a suspect whom they torture for information in fabricated charges. However, it enables them to keep the flow of cases and keep producing the detainees before the courts. It is done for the purpose of keep the economy booming around the trade of justice.
4. Torture is used for justifying the poorly budgeted institutional capacities. To put it another way, torture is taken for granted as an integral practice in the law-enforcement business, and no public or private entity is expected to be eligible to criticize the system, because there are inadequate budgetary allocations. The police officers often argue that due to inadequate manpower, transport, advanced technological equipment for investigation, and training, torture is the ultimate way of running the show.
The law-enforcers find it quite easy to use such an excuse when the judges and prosecutors are poorly trained and lack competence in administering justice. The prosecutors and judges accept the excuse for using torture in interrogation or investigation. Being poorly qualified, the prosecutors and judges do not have the courage or capacity to question the abusive practices maintained by the law-enforcement agencies.
Moreover, there is an understanding that the law-enforcers, investigators, prosecutors, and judges are colleagues appointed by the government, and they are expected to collaborate with each other. The universal idea of separation of power between the executive and the judiciary, in particular, and the notion of the judiciary holding the executive accountable, does not exist.
Besides, the law-enforcement agencies are officially entitled to provide “protection” facilities to the judges, who fear the risk of compromising their own safety by vexing law-enforcement agencies. As a result, each of them – the law-enforcement officers, the prosecutors, and the judges – complement each other to keep the torturous system on.
The absence of adequate and credible forensic medicine or medico-legal examination facilities for criminal investigation is one of the results of poorly resourced justice institutions. It is like a double-edged sword.
For example: the lack of resources and infrastructural facilities for forensic medicine examinations allows the law-enforcement agencies to use torture as the “appropriate method” of investigation. It allows them to produce an outcome of their own wish. On the other hand, once the allegation of torture is brought against the law-enforcement officers, they can walk free due to the same reason – the absence of forensic medicine examination.
The practice of punishing the suspects on the basis of oral statements – often ignoring the physical evidences and forensic proof – paves the way to institutionalise torture for extracting “confession” and for “oral deposition”. This practice stands against the process of transparency and the justice process itself. However, it helps the political, bureaucratic, and financial elites to maintain the status quo of the power structure.
5. There is a reciprocal system of power between the political elites and the law-enforcement agencies in many developing countries in the absence of democracy. Political elites in many such jurisdictions view a faulty electoral process to be an unavoidable requirement for them to grab public office; this is certainly so in places where military dictatorships have been replaced by so-called democracies. Sustaining or perpetuating power is often understood as the ultimate motto of these political power-mongers.
In such an environment, the application of torture and other coercive methods via the law-enforcement agencies is understood to be inseparable from the ‘sustainability’ of political power. In order to sustain and perpetuate power, the political parties in power drive away political opposition and dissenting voices by using coercive methods, including torture and ill-treatment.
Law-enforcement agencies that provide this “service” to their political masters by attacking dissenters, bargain with the ruling elites for impunity to torture and coerce. The ruling elites, who engage law-enforcement agencies to fight on behalf of their political and financial benefit, do not have any choice but to protect the perpetrators of torture. Punishing, or attempting to prosecute a torturer in uniform, is feared to be counterproductive for the rulers.
So, appointments, postings, and promotions in public institutions and the presentation of gallantry awards are perceived and maintained in a way so that the entire process can benefit those who “serve” the political elites.
As a result, in developing countries, wherever torture is criminalized as a result of domestic legislation, governments deliberately shy away from taking effective initiatives to use the law. And, due to the same reasons, justice institutional reform, which is the core requirement, is prevented.
CONCLUSION:
In relation to torture and other coercive methods, the dynamics of such jurisdictions – institutional, bureaucratic, political, and economic – require sincere global attention.
The understanding of the gap and inconsistency between the justice mechanisms of developed jurisdictions and that of the developing countries is highly important. A question has to be answered: why is torture a way of life in certain countries and unthinkable in other parts of the world?
Any commitment to eliminate torture must begin with studies to examine the competence of justice institutions, in terms of independence, credibility, and ability to implement the order in compliance with normative standards.
Elimination of torture should accompany the commitment to re-engineer the justice mechanisms that are torturous and coercive by nature and practice.
International human rights movements should also invest their collective intellectual efforts on the law-enforcement and judicial systems, instead of merely advocating ratification of international treaties and enactment of domestic legislations.
Global advocacy should include campaigns to allocate more resources for the transformation of law-enforcement and justice mechanisms, alongside efforts to promote universal normative standards enshrined in the international instruments.
The United Nations’ Human Rights Mechanisms should incorporate justice institutional reforms in the domestic levels as a priority, for the sake of achieving the objective of prevention of torture and to protect people from torture and human rights abuses. The State Parties’ obligation of implementing the Article 2 of international treaties, such as the ICCPR and the CAT, can be used as a tool for establishing such engagement with individual states.
The developed jurisdictions that have established credible, effective, functional justice institutions can contribute to the process of re-engineering the justice institutions in the developing world, as a part of their development partnership with developing countries.
The development funding policy can incorporate transformation of justice institutions, following comprehensive understanding of the individual state’s unique problems, rather than an imposition or replication of a particular system.
………………………
*Md. Ashrafuzzaman is a staff member of the Asian Human Rights Commission, based in Hong Kong. He can be reached via email: zaman@ahrc.asia. The author presented this paper in a Global Conference on “Fighting torture at home: the implementation of States’ international obligations at the domestic level – lessons learnt and strategies for the way forward”, held on 8th – 9th September 2016, in Nairobi, Kenya
For further details about torture and human rights issues in Asia, please visit:
Asian Human Rights Commission: www.humanrights.asia
Asian Legal Resource Centre: http://alrc.asia/
Article2: http://alrc.asia/article2/
Torture Magazine: www.torturemag.org
