An interview with Basil Fernando, director for Policy and Programme Development of the Asian Human Rights Commission (AHRC)
SPECIAL REPORT
Torture in the Philippines & the unfulfilled promise of the 1987 Constitution
OVERVIEW: In this eighth interview in the series, Basil Fernando, a Sri Lankan human rights lawyer and director for Policy and Program Development of the Asian Human Rights Commission (AHRC), shares his thoughts about why the issue of police torture is of the utmost importance in his country
Basil has been helping numerous torture victims, published books and carried out in-depth research and studies on the issue of police torture in Sri Lanka for over a decade. You can read more of his writings online at: http://www.basilfernando.net/
Basil: I think everybody knows the situation of our countries, whether it is the Philippines, Sri Lanka, Bangladesh, Thailand or any other country here in Asia except for a few places were rule of law and democracy is more established. The answer to the question as to why we concentrate on police torture is simply because police torture is so common, so widespread and creates so much intimidation on the people as it is a common experience of our daily lives.
I can understand if a western person ask why we concentrate on torture because in their countries this problem belongs to the 19th century. They all overcame this problem. Today the common use of torture at police stations is a very rare occurrence in their countries, but for our countries it is a daily occurrence. Every town, every village, wherever there is a police station the method of carrying out an investigation is by intimidating and very often, seriously assaulting people because somehow there is the belief in our policemen that it is not possible to the truth out of people if you don’t beat them up.
So this is thought of as the easy method and of course there is a much bigger problem because this also helps a policeman to earn extortion and get petty bribes. In order to get small things from people you must appear as the tough guy who creates fear so the policeman is not thought of as a community friend who is trying to keep law in order and helping the people to have peace of mind but the person who creates fear in the that if there is fear there will be less crime.
It is because of this association we have widespread torture and it is so common that we have come to think of it as part of our lives. So if you ask a lawyer, a judge, or a legislator or even an intellectual what do you think of torture, they reply so what? I mean this is just too big; this is just part of our lives and we just have to live with it. That is the kind of psychological state in which we live.
The overall impact of all this is that we have societies which are run by fear and by intimidation. Of course there are different degrees. In places like Burma for example the fear is 100%. In some countries there is a greater level of openness but still underneath is a deep culture of fear so that people don’t openly critically engage with the so-called higher up people around them. ‘Higher up’ maybe in terms of authority, in terms of state, having office, a policeman, a judge or whoever, it maybe in terms of money, there are richer people and poorer people or it may be social status and all these kind of things.
There is no critical engagement with each other citizens, that is to say critical engagement with the trust were I can ask anything of another and another can ask anything from me and we are part of a community and that we trying to solve our problems together, which is the heart of the democratic discourse and which is also the heart of having rule of law. We have not come to that stage but there many countries in the world which have come to that stage.
There is a bigger space for state and people to engage with each other, there is a space for debate, discussion and today the state keeps order by such discourse so it is part of their normal life. It is not part of our life. So, this is the main problem around us now if we don’t challenge this there will not be any major improvement in our lives. If we want to have bigger improvement then we must challenge this practice which is of course illegal, immoral and wrong.
The contradiction is that torture is commonly used but at the same time everybody says it is wrong. So, we have to begin to question this. The way to question it is of course to help the victim. We go on the basis that torture is always wrong. Whether the person may be a small criminal or a big criminal or not a criminal; irrespective of whatever his status is in terms of this offense the common position is that nobody can be tortured. If there is a law to be enforced there is a way to do that and people can brought to respect that kind of thing without beating them up.
So, when we hear a person is being treated that way we try to help them, but how many of us go to help? Will you get into trouble because when these people become stronger they will question the authorities and the authorities will find it difficult to carry on their business as usual? They will then find fault with you because you are disturbing this false balance. So, they will term you as a troublemaker or a terrorist or whatever. That is the way initially it happens so you must expect it when you try to help torture victims, you must expect you will have some troubles. People will not say: this old human rights man is a great help in preventing torture so let’s give them him an award or something, they won’t talk like that. They will consider you as a part of the trouble and you will have lot of trouble; but that it is the price you have to pay in attempting to bring some reason back to the society.
The practice of torture has to stop because that is the way to expand the freedom of the people to participate in normal life, political life and day to day affairs. It may be they go to a shop and they are cheated but are afraid to talk. Of women who are often harassed and afraid to talk because there will be violence. And of course we know about the whole Maguindanao Massacre type of situation where an entire society is affected. It is not just the police that contain criminal elements. Society must be aware that in many situations the basic rule of law is just an illusion. So, if to are to break this we must encourage people who are treated badly to have someplace to complain, we must take the trouble to record and document their complaints.
It is a difficult job. You must train the human rights activist to give service to the people, writing down complaints, getting the complaints to the authorities, publicising complaints using modern communications.
This is the freest thing in the world today and we are the luckiest in this area. We can use email, we can use internet; we can use YouTube to show that something wrong has been done and thereby get ordinary people to be more and more vocal in society. This is the whole exercise. It is not like the few human rights activists in the past that did all the human rights work. Ordinary people should do their own human rights work to facilitate us. Our human rights people can facilitate little by little. However, to get people to participate freely that there is law, we must get the idea this law in our societies is the bottom line.
If people believe that there is no law, for me if there is no law, there may be some law for other people but not for me. Then our law itself will be in crisis as people don’t trust the law. We must bring back the trust in the law. That’s the common denominator for us. The law is trusted then. In a country like the Philippines there are a lot of good laws. The constitution is good but if the constitution is not used then what good is it. So, now there is a law in the Philippines, like in my country also in Sri Lanka there is a law. But we found that in Sri Lanka the people did not know about the law. People did not use it. So what we did was we advertised in the newspapers; we told people that if somebody hits you, somebody in authority, they are committing a crime and they can be punished with seven years imprisonment in Sri Lanka.
I understand in Philippines the punishment is even much greater. So, anybody who commits torture, any police officer, military officer, anybody in the authority is committing a crime. So we must give a message to the society. It is a crime. Murder is a crime. Rape is a crime. So torture is also crime and that is what the law says. And then when we get that and the people help this process, helping people use their law to make the law as common ground and thereby to make the change in our societies.
If you believe that our societies cannot be changed then you know our life is not worthwhile. We cannot live in our society with so much violence, so much extortion, so much denial of basic rights, so much of people being denied what they normally have. So, life becomes more difficult, murder takes place and there is no solution to that. Life becomes a nightmare and bewilderment as of our country. We know that is the truth. Now in order to break that, to engage in fighting against this, once you engage you will find many people support that and it becomes a very common discourse. And then you get the satisfaction that you are really helping to improve human rights.
In the Philippines Marcos went, but afterwards the same kind of things happened. So then, what is the improvement of human rights? For human rights to improve the bottom line must be simple. Torture must disappear in the country. The disappearance of torture will bring more benefits than the disappearance of Marcos. Marcos disappeared but the life goes on. But if the torture disappears life will be happier. Relationships with each other must be better and trust in each other will improve and we will also trust the authorities. The police, so long as they do their duty are our friends, but the moment you have this kind of big guy attitude, the fear attitude, then there is something wrong.
So, there is no need of a special reason to engage in torture. It is just a common sense it is a basic duty and we are just doing what we should had done long time ago but even belatedly we should begin. This is how we should begin human rights in our country. There is no other way.
Q: You profoundly mentioned about those issues you raised. I’d like to go back what you have mentioned about instilling fear to the people.
In your experience in Sri Lanka, there are many torture victims who fought and engaged in filing charges; and there are people who have also been killed. So, can you give some reflections on those difficulties for others also to get some sense of the problem?
Basil: See the difficulties now for example are we had our early cases where a worker was just picked up because the police were looking into some big crime. All they knew was that the culprit was named Gerald. So these people looked for any Gerald and the first Gerald they came across they arrested him. You know in Sri Lanka the practice is they won’t ask any questions. They will take you, first they beat you up and then only they will ask questions and that is their belief. If you ask questions people will tell lies.
So, first you beat them up and then ask questions. So, that is what they did. They beat this man up very badly to an extent he had kidney failure and he was unconscious in the hospital for about three weeks. We got to know, we took up the case and we fought for him. And then the Supreme Court of Sri Lanka held that this man had been tortured and they ordered a very large sum as compensation but also they said that the officers should be prosecuted.
So, as a result there was an attempt to have a criminal investigation and the police began to investigate. And what they did first was they went to the victim and said we will give you any amount of money if you come to court and say that you could not recognize who could beat you up, because now if we are found guilty we have to go to jail. So, the man said you know I don’t mind if I give up the case but I cannot come to court and tell lies. So, the negotiation failed, then one week before the man was to give evidence he was shot, he was killed when he was going in a bus.
And now there is a murder case against the police officers. This common occurrence when people complain against the police. The perpetrators first try to bargain and if they failed they will try to intimidate and kill the victims. There is no witness protection law and that is one of the major problems. So, now the people are campaigning to have a witness protection law. We hope that this law will take place. The people are more interested in that now because they have seen that if you want to have a criminal justice it is not possible without the witness protection of law that one kind of problem we have.
The second problem is that even our judges and our lawyers are not educated well on the torture issue because in the past there was no such offense. So, sometimes because of their lack of knowledge they don’t take it very seriously. I think we should have better education of judges; better education of lawyers in order to make them feel that according to the international law torture is a very serious offense and serious action should be taken to stop that. That’s another kind of problem that we have.
The other is the media. The media likes portraying the policeman as heroes. But this psychology has ended after a long period. So they don’t want to publish reports which are critical to the authorities. Now in Sri Lanka it took for us a long time to publish our own version of events. We used the internet and we published our own stories and of course it became a very common thing.
Now, even the media take these cases up. Now there’s a common discussion about torture even in the media. So there is also a problem within the media.
And above all there is a problem in the human rights organizations. Our country human rights organization thought that police torture is something that we will never overcome. The torture was so common and that there is a big problem and it will create a lot of problems if we take it up, so they did not want to go into that. Some people thought of human rights only as political problems. Some big guys doing politics get into troubled when we talk of human rights. If the ordinary man has problems about torture, that’s not their problem.
Now this kind of psychology existed among the human rights activists. They also think we should work very hard to right this wrong. That if you are in human rights, in the UN human rights convention one of the most important human rights is not to be tortured. If you don’t talk about it then you are not really engaged in human rights work.
Then of course there was the problem of the victims. The victims are afraid that if they talk about it they will get more problems. And there is some truth in that. Then we have to create witness support groups to get other people to support them and thereby, to break little by little to break the fear out of more victims, so more victims begin to talk.
So all these kind of problems we had and we still have but we still many problems to overcome but it is very good process by which we begin to understand our own societies.
