Asian justice systems inadequete in combating torture
The Conference on the U.N. Convention against Torture,
which was hosted by Jananeethi and organised by the Asian Human Rights
Commission (AHRC), was held in the Indian state of Kerala from April 2
to 7, 2001. Editor, Human Rights Solidarity, Asian Human Rights Commission,
Twenty-five participants from five counties gathered at this conference
to discuss the issue of torture in South Asia. The discussions were extensive
and deep. The participants issued the statement below in order to draw
the attention of the public to some very serious problems faced by people
in the sub region due to the defective nature of their justice systems.
Enlightenment on the system of the 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 sub-region. People in the sub-region are facing
an utterly helpless situation with a high degree of despair regarding
justice. The law enforcement agencies have become the cause of intense
fear, trauma, and insecurity among the people. Immediate and effective
reforms are needed to restore the rational functioning of these systems.
Torture is practiced to a very high degree in the countries of the sub-region.
In fact, torture remains the main method of criminal investigation in
these countries. Compared to some other parts of the world, the criminal
investigation machinery in these countries is extremely and shamefully
primitive. These investigations are, for the most part, carried out by
quite incompetent people whose educational qualifications are generally
very low. Hindering the resolution of this dilemma is the fact that professional
training is largely 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 sensitivity
towards people does not exist. Except for the upper ranks in society,
no respect is shown to human beings. The rough manner in which even women
are treated is quite common.
Allowing the law enforcement agencies to become ineffective has, in fact,
become a deliberate policy. This policy has as its objective the displacement
of legal obstructions 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 demoralisation seems to be created on purpose to make faith
in the justice system, as a whole, collapse. This policy has, by and large,
succeeded in most countries in the sub-region; and in some countries,
the degree of its collapse has reached dangerous proportions. A significant
result of this phenomenon is that the civic-minded citizen, on whose cooperation
the system rests, has begun to withdraw his or her cooperation in sheer
Such a situation leads not only to an increase of human rights abuses
but also to an 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 the serious spread of lawlessness and
the breakdown of the rule of law. Sri Lanka is only a manifestation of
what might happen in other countries if the situation is not addressed
Some sections of 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 the Atrocities against the Scheduled Castes Act in India, these
laws have 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 people.
Another section of society that is constantly subjected to ill treatment
by the agencies of the justice system is women. Rape remains a major problem.
The treatment that victims have received at the hand of these agencies
has left in them a taste of extreme insensitivity and frustration. Jurisprudence
as practiced in rape cases has not kept up with developments in international
law that consider rape as torture. The procedural developments regarding
investigations and trials also have been neglected, and the way in which
these matters are addressed remain very primitive. People belonging to
marginalised groups, such as workers in the informal sector, have often
been abused as well. Among these are also found people working for church
The same situation is detected in cases regarding children. The neglect
of children's rights is present throughout the justice system. It is particularly
evident in the case of sexually abused children. The investigation of
child abuse cases is primitive, and the prevailing trial system can cause
trauma for children. There has been resistance to adopt the more developed
trial system of using video cameras with safeguards for children. Deep
cynicism, leading to inhuman attitudes, exists against all modern developments,
an outlook that is at the heart of the region's justice systems.
In dealing with all these matters, one of the weakest links in the justice
system is the prosecution systems prevailing in the countries of South
Asia. The prosecution departments often place the burden for the entire
investigation on the police and blame the lack of evidence as the reason
for the non-prosecution of serious crimes. The inefficiency of the police
provides the justification for prosecutors to disassociate themselves
from the case. The arrangement adopted by more developed legal systems
that place responsibility for the prosecution of all crimes on the prosecution
departments should be adopted, and provisions must be made to scrutinize
all claims of an 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 these
investigations. The prosecution departments must be held responsible for
the prosecution of torture cases.
Under international law, torture is regarded as a crime falling under
jus cogens, which 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 international law. Instead, torture
is treated in a trite manner. Most complaints of torture are neglected.
In the few cases that succeed, only compensation is paid, and it is 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 lenient way that torturers are being
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 of the agencies in the justice system-the police, the prosecution,
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 justice system are a primary need. Only the people can bring
about changes in the system and transform it from its current primitive
stage to an enlightened one adequate to meet the needs of the times.
Thus, the implementation of the U.N. Convention against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment requires many initiatives
on the part of governments as well as the people of Asia. Even India,
which is the largest country in the sub region and which describes itself
as the largest democracy in the world, has not ratified the convention.
Sri Lanka, which has ratified the convention and which has enacted a domestic
law for its implementation (Act No.22 of 1994), has not successfully prosecuted
any torturers, although the Supreme Court of Sri Lanka and the National
Human Rights Commission have declared that many people have committed
torture and other cruel, inhuman or degrading treatment or punishment.
proper implementation of the convention requires the steps below.
- Torture must be
treated as a criminal offence and must be punished with imprisonment.
The seriousness of the criminal act must be recognised by the penalties
imposed against it with the need for compensation for the victims of
this serious criminal act. Imprisonment may result in a quick reduction
of the use of torture among law enforcement agencies.
- The prosecutor
general or the equivalent of this position (for example, the attorney
general in some countries) must bear the legal responsibility for the
prosecution of all cases of torture and other cruel, inhuman, or degrading
treatment or punishment.
- An independent
investigation unit must be given the legal responsibility of investigation
of all cases of torture and other cruel, inhuman or degrading treatment
- National Human
Rights Commission must constantly supervise the enforcement of the Convention
against torture and other cruel, inhuman or degrading treatment or punishment
or other related domestic laws. National human rights commissions can
play a positive role in promoting the convention through education and
investigations and by making recommendations for the proper implementation
of the provisions of the convention.
- Civil Society
organisations must make an active role in promoting and monitoring in
the implementation of the Convention. They must particularly monitor
the way that prosecutors and investigators perform their duties and
must expose the failures of these agencies.
- Religious leaders
and groups can play a vital role in promoting the Convention and doing
all they can to ensure that it is properly implemented. In addition,
they can educate the masses on ways that they can become involved to